Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. CIVMSC06-02269
Richman, J.
Plaintiff David Gutierrez appeals from a summary judgment in favor of his former employer, Nor-Cal Ready Mix, Inc. (Nor-Cal), for which he had worked as a probationary cement truck driver for approximately five weeks before being terminated. He was injured on the job and was terminated four days later for failure to pass probation due to excessive absence.
Gutierrez filed a complaint alleging (1) discriminatory discharge based on a physical disability, (2) failure to make reasonable accommodation, and (3) failure to engage in good faith interaction to determine a reasonable accommodation under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940, subds. (a),(m) & (n).) The trial court granted summary judgment because (1) Nor-Cal had no actual or constructive knowledge that Gutierrez had a FEHA-covered disability at the time the discharge decision was made, (2) Gutierrez did not request a reasonable accommodation, and (3) given the nature of Gutierrez’s injury, no reasonable accommodation could have been provided. We affirm.
All statutory references, unless otherwise indicated, are to the Government Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pre-Termination Facts
On September 27, 2004, Gutierrez began working as a cement truck driver for Nor-Cal at its Antioch plant on a 45-workday probation. He was a member of Teamsters Local 315, and his employment was governed by the union’s collective bargaining agreement (CBA). The CBA specified that during the probationary period an employee could be terminated for “any reason without recourse, notwithstanding any provision in this agreement to the contrary.”
Nor-Cal previously did business as “AR Readymix” and is sometimes so denominated in the record.
Gutierrez’s direct supervisor was Antioch plant supervisor, Sam Cast, whom he called the “dispatcher.” Gutierrez claims he could also report to Mark Bustos, Nor-Cal’s safety manager, whom he said was “in charge of the dispatchers.” Bustos’s office was located at corporate headquarters in Woodland. Bustos was responsible for driver training, regulation, and compliance at ten different plant locations, including Antioch. He was not a manager at the Antioch plant, but he visited the plant once or twice a week.
On Monday, October 25, 2004, at the end of the work day, Gutierrez was injured while cleaning out the chute of a cement truck. He did not immediately feel any pain, but he woke up the next morning with stomach pain. At first he did not think it was work-related.
On Tuesday, he attended an early morning safety meeting conducted by Bustos at the Antioch plant, but did not have to work the rest of the day because of rain. Bustos could see that Gutierrez was in pain. After the meeting Gutierrez told Bustos he was suffering from abdominal pain and possibly a bladder infection. He also told Cast, his direct supervisor, that he was “not feeling very well” and had some abdominal symptoms. Both managers told him he should see a doctor.
Gutierrez went to his doctor, Celso Taborga, M.D., later that day and received an absence form allowing him to remain off work until November 8. He did not fax the absence excuse to Nor-Cal on Tuesday evening.
According to Nor-Cal’s policies, employees are required to call in absences to their “supervisors directly.” Gutierrez knew he was expected to call in sick to Cast by 8:00 p.m. the night before if he expected to miss work, so that Cast could find a replacement driver. In all events, employees were expected to report their absence to their supervisors “as early in the day as possible but at least 60 minutes prior to their starting time.” Nevertheless Gutierrez did not call Cast on Tuesday night to report an expected absence the next day, nor did he call Cast before he was scheduled to report to work on Wednesday.
On Wednesday, October 27, Gutierrez was scheduled to work at 8:00 a.m., but failed to report. He called Bustos at about 5:30 a.m. and left a message asking for a return call. About 10:40 a.m. he began calling Nor-Cal’s human resources (HR) department, located at the corporate offices in Woodland. He reported to Sara Vasseur, HR administrator, that he was under a doctor’s care and had a note from his doctor excusing his absence. He said he would fax the doctor’s absence form to the HR office. He left 10-15 voicemail messages for Vasseur over the ensuing days asking her to call him back, and he spoke to her about three or four times describing “various illnesses.” He told her he wanted to make sure HR knew what was going on. However, he still did not fax the doctor’s form to Nor-Cal on Wednesday.
At about 12:20 p.m. on Wednesday, Gutierrez talked to Bustos directly, telling him he could not make it in to work and expressing concern about being able to keep his job. He told Bustos he had a doctor’s note. According to Gutierrez, Bustos reassured him, “Just get better, you won’t lose your job.” Gutierrez did not call Cast on Wednesday to report his absence that day or his anticipated absence on Thursday.
There is some ambiguity about whether these phone calls to Bustos occurred on Tuesday or Wednesday. The discrepancy in dates is not material to our resolution of the appeal.
On Thursday, October 28, Gutierrez was scheduled to work at 7:30 a.m. but did not show up. He was suffering from severe low back pain, so his wife took him to Dr. Taborga’s office without an appointment. Dr. Taborga sent him to the emergency room at the hospital, where a CT scan showed possible gallstones. Gutierrez also testified that the emergency room personnel told him his problem was muscular.
Shortly before 5:00 p.m., Gutierrez called Bustos and told him he had just returned from the emergency room and that he had suffered a lower abdominal or lower back injury at work because the cement truck chute would not shut. Once again, however, he did not report his absence to Cast and did not submit a doctor’s form on Thursday.
Again, there is some ambiguity whether he first told Bustos it was a work-related injury on Wednesday or Thursday. The exact date is not material to our analysis. Gutierrez did not provide Nor-Cal with documents showing his health problems were work-related.
On Friday, October 29, Gutierrez was scheduled to work at 7:20 a.m. but did not report. Again, he did not inform Cast that he was going to be absent. Gutierrez again called Vasseur in HR and updated her on his condition, again saying he had a doctor’s note and would fax it over. He said he expected to return to work by the middle of the next week (i.e., approximately November 3). He thought he was passing gallstones and that he would pass them and “move on.”
Sometime on Friday, Cast met with Antioch operations manager, Victor Cummings, and they decided to terminate Gutierrez due to three consecutive days of absence and reports that he had been argumentative at job sites. At the time they made that decision, Cummings was unaware of any claims by Gutierrez that he had an injury or medical condition, work-related or otherwise. Cast knew Gutierrez had a stomach ache on Tuesday, October 26, but Gutierrez has presented no evidence that he updated Cast through the remainder of the week about subsequent medical developments. Cummings did not discuss the discharge decision with Bustos. However, in accordance with company policy Cummings did speak to HR Manager Cherine George before the final termination decision; and she reported that Gutierrez had not submitted any medical documentation to explain his absences. The time of the meeting is not reflected in the record.
Gutierrez disputes that the termination was based in any part on his having been argumentative at job sites. We do not base our analysis on that fact.
Cast completed an Employee Disciplinary Report on Friday, October 29, which gave “failure to successfully complete probationary period” as the reason for discharge. The following Monday, November 1, Cummings completed an Employee Separation Report giving the same reason. Cummings rated Gutierrez’s overall performance as “poor” on that form and recommended that he not be rehired. Cummings promptly reported the discharge to Gutierrez’s union representative. Gutierrez was terminated before the completion of his 45-workday probationary period.
Meanwhile, Dr. Taborga’s office faxed a document to HR on Friday, October 29. However, the document was a claim for disability benefits filled out when Gutierrez worked for a previous employer, not a current work absence note. Vasseur called Gutierrez and told him of the error. They apparently spoke at 12:44 p.m.
Gutierrez later faxed the correct doctor’s note to HR, but it specified only that he was “under [Dr. Taborga’s] care” from October 26 to November 6 and gave a return to work date of November 8. The date stamp on the fax shows that it came through at 5:03 p.m. on October 29, and Gutierrez admitted at his deposition that he sent it at that time. However, he now claims that his telephone records (which were not admitted in evidence) show that the fax actually went through at 3:01 p.m.
2. Post-Termination Facts
From November 1 through November 4, 2004, Gutierrez had no contact with Nor Cal and was unaware that he had been terminated. On Friday, November 5, Gutierrez saw Dr. Taborga for back pain. Dr. Taborga ordered a lumbar MRI. That afternoon, Gutierrez faxed another note from Dr. Taborga to Vasseur in HR, indicating only that Gutierrez was “under [Dr. Taborga’s] care” from 11/3/04 to 11/13/04, with no “return to work” date indicated. The lumbar MRI was performed on November 10, revealing mild degenerative changes and disk bulging.
On Friday, November 12, 2004, Gutierrez again saw Dr. Taborga for lower back problems. The doctor ordered an intravenous pyelogram to determine if there was renal calcification. That evening Gutierrez faxed another note to Vasseur in HR from Dr. Taborga, which again stated only that he was under the doctor’s care from 10/26/04 to 11/20/04, with no “return to work” date indicated. The results of the intravenous pyleogram proved to be normal.
On November 13, Dr. Taborga filled out a “Doctor’s Certificate—Claim for Disability Benefits” in which he gave a primary disease code of “gallstone/kidney stone.” Gutierrez called Bustos on November 12 or 13 and told him he was possibly passing gallstones. Bustos was in a meeting and told Gutierrez to call Cast. Gutierrez called Cast on Monday, November 15, and was informed that he had been “let loose” by Nor-Cal on October 29.
Gutierrez continued seeing Dr. Taborga until, by January 21, 2005, the doctor had diagnosed Gutierrez’s condition as a left psoas muscle strain. The psoas is a large muscle that extends from the lumbar vertebrae to the femur. Dr. Taborga provided a declaration stating that Gutierrez’s psoas muscle strain was a physical disease, disorder, or condition that affected Gutierrez’s musculoskeletal system and made many major life activities difficult. He also opined that Gutierrez sustained the muscle strain on or about October 25, 2004.
By January 31, 2005, Gutierrez had been cleared by Dr. Taborga to go back to work, and by the summer of 2005 he had fully recovered. Gutierrez testified in his deposition that he could not have returned to his job as a cement truck driver until February or March of 2005, and even then he would have had to “work through pain.”
3. Trial Court’s Ruling
Gutierrez filed this action on November 6, 2006, alleging three distinct violations of the FEHA: (1) discriminatory discharge based on a physical disability, (2) failure to make reasonable accommodation, and (3) failure to engage in good faith interaction to determine a reasonable accommodation under the FEHA. (Gov. Code, § 12940, subds. (a),(m) & (n).) The trial court granted Nor-Cal’s motion for summary judgment on March 6, 2008, concluding that: (1) Gutierrez failed to meet his prima facie burden of showing that Nor-Cal had knowledge of his disability when the termination decision was made because he had simply called in sick for several days but had not claimed a specific disability, and his explanation for why he could not work varied from day to day; (2) Gutierrez’s various explanations for being out “sick” were “just as consistent with a lazy, ill, or preoccupied employee as with one with a ‘physical disability’ under the FEHA”; (3) even if Gutierrez could show that Nor-Cal had actual knowledge of his alleged disability, he “cannot show that he was qualified to perform the essential functions of his job with or without a reasonable accommodation”; (4) Gutierrez did not ask for any accommodation at the time of his injury; and (5) Gutierrez’s “apparent belief that [Nor-Cal] should have proposed a ‘short period of time off work’ as an accommodation is not the law, nor would it have been adequate in his case.”
DISCUSSION
1. The Legal Standards
The FEHA makes it illegal “[f]or an employer, because of the... physical disability... of any person,... to discharge the person from employment....” (§ 12940, subd. (a).) The act “does not prohibit an employer from... discharging an employee with a physical... disability, or subject an employer to any legal liability resulting from... the discharge of an employee with a physical... disability, where the employee, because of his or her physical... disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (§ 12940, subd. (a)(1).)
To show a prima facie case of discriminatory discharge “ ‘on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability.’ [Citation.]” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344-345.) The “because of” requirement adds a necessary showing that the employer knew of the employee’s disability at the time of the adverse employment decision. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236-237.)
Once a prima facie case has been established, a presumption of discrimination arises. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 .) The burden then shifts to the employer “to rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the employer,’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]” (Id. at pp. 355-356.)
“If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.]... The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356.) “When there is no disputed issue of material fact that the employer had a nondiscriminatory reason for the adverse employment decision, the employer is entitled to summary judgment. [Citation.]” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)
Gutierrez also claims Nor-Cal violated the FEHA by “fail[ing] to make reasonable accommodation for the known physical... disability of an... employee” and by “fail[ing] to engage in a timely, good faith, interactive process with the employee... to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee... with a known physical... disability....” (§ 12940, subds. (m) & (n).)
“The elements of a failure to accommodate claim are similar to the elements of a... discrimination claim.... The plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen).) An employer is required to accommodate only a “known” disability. (§ 12940, subd. (m).) “[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.’ ” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887.) For a failure to accommodate claim the plaintiff need not show that an adverse employment action was taken. (Jensen, supra, 85 Cal.App.4th at p. 256.) “ ‘Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citations.]’ ” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252, opn. mod. 166 Cal.App.4th 132a (Avila).)
In Nadaf-Rahrov v. The Neiman Marcus Group (2008) 166 Cal.App.4th 952, 973 979 (Nadaf-Rahrov), Division Five of this court held that a cause of action for either failure to accommodate (§ 12940, subd. (m)) or failure to engage in the interactive process (§ 12940, subd. (n)) requires a showing by the employee that he was a “qualified individual with a disability” (id. at pp. 964-965) in that he was able with reasonable accommodation to perform the essential functions of the job held or desired. (Id. at pp. 975-976.) It further defined a reasonable accommodation as “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Id. at p. 976.) Finally, it placed on the plaintiff the burden of proof on these issues. (Id. at p. 978.)
Where the case has been decided on summary judgment, “ ‘ “[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing....” [Citation.]’ ” (Arteaga, supra, 163 Cal.App.4th at p. 344.)
Summary judgments are reviewed de novo. (Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at p. 128.) “We review the evidence presented to the trial court and independently adjudicate its effect as a matter of law.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) Where, as here, summary judgment has been granted to the defendant, we must “ ‘view the evidence in the light most favorable to plaintiff[] as the losing part[y]’ and ‘liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.’ [Citation.]” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96 97.)
2. Even Assuming The Nor-Cal Employees Who Discharged Gutierrez Had Knowledge Of His Medical Complaints, That Did Not Amount To Knowledge Of A Disability So As To Trigger The FEHA’s Duties Of Accommodation And Interaction.
Gutierrez argues at some length that a qualifying physical disability, like a mental disability, may be of a temporary nature. (See Diaz v. Federal Express Corp. (C.D. Cal. 2005) 373 F.Supp.2d 1034, 1046-1053 [whether employee’s mental disability, which lasted approximately six months, was a disability covered by FEHA was a factual issue on which the employer was not entitled to summary judgment]; but see 29 C.F.R. Pt. 1630, App. § 1630.2(j), p. 370 (2008) [“temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities”].) For purposes of this appeal, Nor-Cal does not question that Gutierrez’s left psoas muscle strain was a FEHA-qualifying disability, and we do not decide that issue.
Rather, like the trial court, we base our conclusions on the undisputed evidence that the individuals at Nor-Cal who decided to discharge Gutierrez had no knowledge of any purported disability at the time of their decision. We further conclude there is no genuine issue of fact that Gutierrez requested a reasonable accommodation. These facts defeat all of Gutierrez’s FEHA claims for lack of a prima facie showing. We also conclude that Nor-Cal produced evidence of a nondiscriminatory reason for the discharge, and Gutierrez presented no substantial evidence to rebut that showing.
A. The Proper Inquiry Is Whether The Employees Who Terminated Gutierrez Had Knowledge Of His Disability.
Gutierrez seems to argue that knowledge possessed by Vasseur and Bustos should be imputed to Nor-Cal as a whole, regardless of whether Cast, Cummings, or George—the decision makers—had actual knowledge of Gutierrez’s medical plight. We disagree.
Nor-Cal argues that only Cast and Cummings were decision makers in the discharge. Gutierrez argues that since George had the “final okay,” she, too, was a decision maker. In view of our obligation to view the evidence in a light most favorable to the non-moving party, we accept Gutierrez’s interpretation.
To be liable on a claim of discriminatory discharge, the employer must have actual knowledge of the employee’s specific disability at the time of the adverse employment decision. (Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 712, 725; Brundage v. Hahn, supra, 57 Cal.App.4th at pp. 236-237 [“An adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer. Thus,... a plaintiff must prove the employer had knowledge of the employee’s disability when the adverse employment decision was made.”]) Moreover, the employee bears the burden of giving the employer notice of his disability. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 (King); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222; see also Phillips v. Quebecor World RAI, Inc. (7th Cir. 2006) 450 F.3d 308, 311-312 [applying same rule under Family and Medical Leave Act (FMLA)].)
Because the FEHA targets intentional discrimination, the actual individuals who made the adverse employment decision must have known about the disability when they made that decision. (Avila, supra, 165 Cal.App.4th 1237, 1248-1250; King, supra, 152 Cal.App.4th at p. 434.) Knowledge of the disability “will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts.” (Avila, supra, 165 Cal.App.4th at p. 1248, quoting Brundage v. Hahn, supra, 57 Cal.App.4th at p. 237.)
Avila is persuasive. Avila, a food service employee who had worked for Continental Airlines for seven years, was terminated after he missed seven days of work within a 12-month period. Four of the days were due to acute pancreatitis for which he was hospitalized. He claimed he should not have been charged with those absences because they constituted a disability under the FEHA. (Avila, supra, 165 Cal.App.4th at pp. 1248-1250.) When he returned from his hospital stay, Avila provided a Kaiser form showing that he had been hospitalized for three days, without explanation of the reason. He either gave it to, or left it on the desk of, a manager, and it was contained in his personnel file. (Id. at pp. 1244, fn. 3, 1248.)
Nevertheless, Avila held that Continental was entitled to summary judgment because the decision to terminate plaintiff’s employment was made by other personnel who were unfamiliar with his medical excuses. “[T]o show that Continental acted with discriminatory intent, plaintiff was required to produce evidence that the Continental employees who decided to discharge him knew of his disability.” (Avila, supra, at p. 1248.) This was true even though the employee had told one of the decision makers prior to the actual termination that he had been “sick” during the four-day absence for pancreatitis. (Id. at p. 1245.) Telling the manager he was “sick” was not the equivalent of telling him he was “disabled.”
This corresponds to the fact that Cast knew on October 26 that Gutierrez was complaining of abdominal distress. But as in Avila, that fact is not tantamount to Cast’s knowing of a FEHA-covered disability. It is undisputed that Gutierrez repeatedly called Vasseur and Bustos in Woodland to report his absences, rather than calling Cast at the Antioch facility, as he was supposed to do according to company policy. This tends to show that the actual decision makers who discharged Gutierrez (Cast, Cummings and George) had no knowledge of his purported disability at the time of their decision. The extent of their knowledge will be discussed in sections I.C. and I.D., post.
B. The Information Provided By Gutierrez Did Not, As A Matter Of Law, Constitute Notice That He Suffered From A FEHA-Qualifying Disability.
Gutierrez never told Nor-Cal that he was “disabled” as opposed to being “injured” or sick. Even Dr. Taborga’s absence note indicated only that he was under a doctor’s care, with no diagnosis or condition indicated. Nevertheless, Gutierrez now claims he provided sufficient information to put Nor-Cal on notice that he was disabled. We cannot agree.
In the days leading up to his termination, Gutierrez variously described his ailment as a work-related lower back injury, stomach ache or abdominal pain, or a possible bladder infection. At some point he also began to identify the source of his pain as gallstones. During the course of treatment Dr. Taborga told him his symptoms could also be caused by kidney stones or a slipped disk. Gutierrez did not obtain a diagnosis of a left psoas muscle strain until January 2005, long after he was discharged.
As the trial court observed, Gutierrez’s explanations for his absence were “just as consistent with a lazy, ill or preoccupied employee as with one with a ‘physical disability’ under the FEHA.” His descriptions of his various symptoms prior to his termination did not, as a matter of law, put Nor-Cal on notice that he had a FEHA qualifying disability.
Pain alone does not constitute a disability. (Arteaga v. Brink’s, Inc., supra, 163 Cal.App.4th at p. 348.) And simply calling in sick is not enough to put the employer on notice that an employee has a qualifying disability.
The fact is that Gutierrez himself did not know prior to his termination what was wrong with him, much less whether it amounted to a FEHA-covered disability. As of October 29, the date of his termination, Gutierrez described his own state of mind as believing that he had gallstones and that he would pass them and “move on” within a few days. He testified that as of October 29 he was “in denial” about the seriousness of his condition. Indeed, even after he filed his lawsuit, Gutierrez—however curiously—admitted in his interrogatory responses that he “suffered no ‘disabilities’ immediately before having his employment wrongfully terminated by defendant.” If Gutierrez himself did not know he had a disability prior to October 29, 2004, it is difficult to see how his employer could have known. As the court colorfully put it in King, supra, 152 Cal.App.4th at p. 443, “An employee cannot demand clairvoyance of his employer.”
Nor-Cal submitted documentary evidence showing that Gutierrez did not supply a doctor’s excuse or statement of disability prior to the company’s decision to terminate him. The parties disagree about the time at which Dr. Taborga’s absence form was faxed to Nor-Cal on October 29. Gutierrez argues that his telephone bills should have been admitted to prove he faxed it to Vasseur at 3:01 p.m., rather than at 5:03 p.m. as the fax legend indicates.
Even if the phone bills had been admitted, however, a trial is not warranted to determine at exactly what time the fax was transmitted. Nor-Cal submitted a declaration by Cummings that George was consulted at the time of the discharge decision, and she said Gutierrez had not submitted any medical documentation at that time. For purposes of this appeal, such evidence satisfies Nor-Cal’s burden of showing the Gutierrez cannot make a prima facie showing of discriminatory discharge based on the fax. Regardless of what conjecture may be raised about the relative likelihood of George’s having received the fax if it was sent at 3:01 p.m. rather than 5:03 p.m., such speculation does not raise a genuine issue of material fact requiring a trial.
The HR confidential fax machine was located in George’s office.
Gutierrez made no objection to either the content of the fax legend or to Cummings’s recitation in his declaration of what George told him. Since no objection was raised below, any available objection has been waived. (Code Civ. Proc., § 437c, subd. (b)(5); see also Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140 [where no objection made to otherwise inadmissible evidence submitted in connection with summary judgment motion, defect is waived and evidence is part of the record an appellate court must consider].)
More importantly, even if the doctor’s form was received in HR prior to the termination decision, it provided insufficient information to put Nor-Cal on notice that Gutierrez was disabled, rather than simply ill. Again, Avila is apt. Affirming summary judgment for the employer, the court held that Kaiser forms showing only that the employee had been hospitalized for three days, with no description of the medical reason, were insufficient to put the company on notice of his disability. The Kaiser forms “did not identify plaintiff’s illness ‘let alone a “disability”....’ ” (Avila, supra, 165 Cal.App.4th at p. 1248.) “[T]he forms communicated only that plaintiff was unable to work on four workdays... due to an unspecified condition, and that plaintiff was hospitalized for three days. The forms did not specify that plaintiff suffered from pancreatitis or any other condition that qualified as a disability under section 12926, subdivision (k). Informing Continental merely that plaintiff had been hospitalized was not sufficient to put Continental on notice that plaintiff was suffering from a qualifying disability.” (Id. at p. 1249.)
Exactly the same deficiencies apply to Dr. Taborga’s absence form. The note simply indicated that Gutierrez was “under [a doctor’s] care.” The form had boxes to indicate whether the employee required “restrictions,” “light work,” or “normal work,” but none of the boxes was checked. The form did not indicate the nature of Gutierrez’s medical condition or contain any notations in the “comments” section. Hence, the doctor’s form faxed on October 29 failed to put Nor-Cal on notice that Gutierrez had a FEHA-covered disability.
C. Gutierrez Failed To Produce Evidence That The Decision Makers Had Knowledge Of His Disability.
Nor-Cal filed a declaration by Cummings describing the process by which Gutierrez was discharged. There is no legitimate dispute that the decision to terminate Gutierrez occurred on October 29, 2004, as described in Cummings’s declaration. Thus, only the knowledge possessed by Nor-Cal prior to that decision is relevant to the discriminatory discharge claim. The decision itself could not have been motivated by discriminatory animus, even if additional medical information came to light before all of the paperwork was processed. Even if Nor-Cal had learned that Gutierrez had a disability after the discharge decision was made, it would not have been required to reverse the termination decision on the basis of that newly acquired knowledge. (See Avila, supra, 165 Cal.App.4th at p. 1251; Brundage v. Hahn, supra, 57 Cal.App.4th at pp. 236-237.)
Gutierrez claims there is a legitimate issue of fact concerning the date of his termination. He points out that Cummings filled out his separation papers on November 1, 2004, rather than October 29, and that he was never notified in writing of his termination, although it was Nor-Cal’s policy to send termination letters. He also seeks to prove that he did not receive his final paycheck until March 2005. These discrepancies do not create a genuine issue of material fact.
In his declaration, Cummings expressly disclaimed any knowledge of an injury or illness of Gutierrez at the time the discharge decision was made. Cummings also declared that “We [he and Cast] discussed that [termination] decision with human resources manager, Cherine George. She confirmed that Mr. Gutierrez had not submitted any medical documentation explaining his absences from work,” and that George “concurred with” the discharge decision. Vasseur herself never spoke to Cummings or Cast about Gutierrez’s medical problems. Nor-Cal has thus carried its burden of showing that Cummings had no knowledge of any medical problems, much less a disability, and Gutierrez has failed to produce evidence raising a genuine issue of fact on this point.
With respect to the other two decision makers, the issue is closer. It is possible, based on the evidence presented, that Bustos may have talked to Cast or George about Gutierrez’s medical complaints. However, as discussed above, any potential factual dispute about exactly what information George and Cast may have possessed is not material. Even if George and Cast possessed all of the knowledge available to Nor-Cal as of October 29, neither of them would have known that Gutierrez had a FEHA-covered disability. Gutierrez’s varying complaints of physical pain and speculation about what might be causing it did not, as a matter of law, amount to a report of a FEHA-qualifying disability.
3. Gutierrez Was Not A Qualified Individual Because He Could Not Have Performed His Job At Nor-Cal, Even With A Reasonable Accommodation, And He Did Not Request A Reassignment.
The law clearly places on the plaintiff the burden of showing he is a “qualified individual” under the FEHA. (Green v. State of California (2007) 42 Cal.4th 254, 257 258; see also Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 976-978, 981-982 [same rule applies to claims of failure to provide reasonable accommodation and failure to engage in interactive process]; § 12926, subd. (f).)] In order to meet that requirement the plaintiff must produce evidence showing he “was able to do the job with or without reasonable accommodation.” (Green, supra, 42 Cal.4th at p. 262.) The FEHA “unambiguously provid[es] that an adverse employment action on the basis of disability is not prohibited if the disability renders the employee unable to perform his or her essential duties, even with reasonable accommodation.” (Id. at p. 264; accord, Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 970 [quoting § 12940, subd. (a)(1)].) A “reasonable accommodation” is defined as “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Nadaf-Rahrov, supra, at pp. 975-976.)
1. Gutierrez Was Not Qualified Because Of His Injury.
There is no genuine factual dispute that Gutierrez’s injury rendered him unable to do the job he was hired to do, even with reasonable accommodation. He readily admitted there was nothing Nor-Cal could have done by way of accommodation to make it possible for him to drive a cement truck. Gutierrez described in his deposition the pain he suffered and his difficulty coping with everyday activities, including that he “had to actually, physically just fall to the ground, crying and crawling with [his] arms....” The majority of pain he suffered was in the first two to three weeks, but his symptoms “lingered around” after January, and into the summer. There is no dispute that Gutierrez was unable to perform the essential duties of a cement truck driver at least from October 26, 2004 through January 31, 2005.
This case is therefore similar to Hastings v. Department of Corrections, supra, 110 Cal.App.4th at pp. 968-969, 971,where a correctional officer trainee suffered knee injuries during probation which rendered him unable to perform the essential functions of the job for which he was hired. The department’s discharge was not a violation of the FEHA. (§ 12940, subd. (a)(1).) Despite Hastings’s request for an alternative position, such accommodation was not required where it would conflict with civil service hiring rules. (Id. at pp. 971-977.)
Although Gutierrez now claims he could have worked on “modified duty,” such as “pushing paper work,” by mid-December 2004, he never asked that he be assigned to light duty. He believes Nor-Cal should have suggested that as an option, and that an employer is required to “create work to keep you busy” while recovering from an injury.
Well settled law is to the contrary. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 965 [when employee requests alternative position employer is required for summary judgment to show the employee was unable “with or without accommodation, to perform the essential functions of an available vacant position that would not be a promotion”]; Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1223) [“ ‘The responsibility to reassign a disabled employee who cannot otherwise be accommodated does “not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights....” ’ ”]; McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501 [“The employer is not required to create new positions or ‘bump’ other employees to accommodate the disabled employee”]; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [employer has a duty to reassign a disabled employee only if “ ‘an already funded, vacant position at the same level exists’ ”].)
Since Gutierrez never requested light duty and never identified any other job available at Nor-Cal that he could have performed with accommodation, he has not shown that he is a “qualified individual.” A plaintiff may not show he is a “qualified individual” by proving that he ultimately recovered from the “disability” and could have returned to work eventually. To adopt such a rule would run completely counter to section 12940, subdivision (a)(1), which allows an employer to discharge an employee who is unable to perform his essential duties even with accommodation.
B. Gutierrez Was Not Qualified Because His Medical Examiner’s Certificate Had Expired And Could Not Be Renewed During The Period Of His Incapacitation.
Cement truck drivers are required to have a current medical examiner’s certificate to operate the truck. Gutierrez’s certificate expired in October or early November 2004. Dr. Taborga certified him on January 31, 2005 for a new certificate, and Gutierrez testified there is “no way” he could have qualified for it earlier. Gutierrez claims there is a genuine issue of fact as to whether his Medical Examiner’s Certificate had expired at the time of his injury.
There is no dispute, however, that during a substantial period following his injury, Gutierrez was not legally qualified to drive a cement truck. (49 C.F.R. § 391.41(a) (2008).) He now claims that he could have obtained a new certificate earlier if Nor-Cal had not terminated him, but this is inconsistent with his deposition testimony, not to mention the other undisputed facts about his physical incapacity. In sum, Gutierrez was not a “qualified individual” at the time of his discharge because he was unable to perform his duties even with modification, and he lacked a further legal qualification with the expiration of his medical certificate at or shortly after the time of his discharge.
4. Gutierrez Requested No Accommodation And The Indefinite Leave Of Absence His Attorney Now Proposes Would Not Have Been A Reasonable Accommodatio.
Gutierrez admitted in his deposition that he never requested that Nor-Cal provide him with any accommodation. He initially testified that the accommodation he wanted was “light duty,” but his lawyer switched gears during the litigation, arguing that the “reasonable accommodation” Gutierrez really wanted was a “short leave of absence.” Gutierrez now claims his pre-termination communications with Nor-Cal amounted to a request for a leave of absence as a reasonable accommodation.
The employee ordinarily must take the initiative by asking his employer for an accommodation. “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.” (Jensen, supra, 85 Cal.App.4th at p. 266.) For lack of a request alone, Gutierrez has failed to show a prima facie case of failure to accommodate, for the disability was not “known” to the employer.
Even if Dr. Taborga’s absence excuse were construed as a leave request, as previously discussed, Gutierrez presented no substantial evidence to overcome Nor-Cal’s showing that Dr. Taborga’s note was not received by the company’s decision makers until after his discharge. Gutierrez’s deposition testimony describing his telephone calls to Vasseur and Bustos included no reference to a request for a leave of absence.
The only other potential piece of evidence on this point is Gutierrez’s own handwritten note (recorded after the fact) referring to “a medical leave of absence... coming through the fax” when he talked to Vasseur on October 29. Viewed in the context of Gutierrez’s own testimony, this simply recorded his promise to fax over Dr. Taborga’s absence excuse. Neither Dr. Taborga’s absence form nor Gutierrez’s telephone calls were tantamount to requesting an extended unpaid medical leave to accommodate a known disability.
While the cases suggest that a leave of absence may be a reasonable accommodation in some circumstances, such accommodation is not universally mandated, especially if the employee suffers from an undiagnosed condition that prevents him from working. By Gutierrez’s reckoning, any time an employee develops an undiagnosed medical problem which renders him temporarily unable to perform his job, he must be given a medical leave for an indefinite period until the cause of his malady can be determined, apparently regardless of whether he asks for it or is entitled to it under his employment contract. We do not think the FEHA should be read as imposing such a mandatory leave of absence while his medical diagnosis is explored, especially for a probationary employee.
Rather, “an employer is liable under section 12940(m) for failing to accommodate an employee only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 977; see id. at pp. 973-977.) Since there was no workplace modification that could have rendered Gutierrez able to perform his job, his termination was not a violation of the FEHA. (§ 12940, subd. (a)(1).) The cases cited by Gutierrez do not justify a trial on whether he should have been granted a leave of absence.
In Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226, a meatcutter who injured his hand at work was given 16 months’ leave to recuperate, seven months more than his union’s CBA provided. Under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA), “reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment,” and Hanson held that “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” (74 Cal.App.4th at p. 226.) Since the employer had reasonably accommodated the employee’s disability with this extended leave, it was justified in discharging him when he refused to accept another available position at lower pay. Hanson did not mandate that a leave of absence be offered, but merely recognized that the employer had fulfilled its accommodation duty by giving the employee more time off work than he was entitled to under his employment contract.
Plaintiff in Jensen, supra, 85 Cal.App.4th at p. 263, was a bank branch manager who had worked for Wells Fargo and banks acquired by it for 16 years but developed post-traumatic stress disorder after being the victim of an attempted bank robbery. (85 Cal.App.4th at p. 249.) Unable to function as a branch manager, she was put on leave while the bank attempted to reassign her. She was offered some reassignments but rejected them; and she applied for, but was not selected for, several other open positions. Jensen sued under the FEHA. (Id. at p. 252-253.) Although the leave of absence the bank had granted her was considered a form of accommodation, the court characterized such a leave as a “way to put a disabled employee on hold while the attempt to locate a permanent position is ongoing.” (Id. at p. 264.) The bank was not entitled to summary judgment because there was a triable issue as to which party caused the interactive process to break down. (Id. at pp. 264-266.)
Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, 1247 (Nunes), involved a Wal-Mart sales associate who suffered from fainting spells, and had initially taken a medical leave at her employer’s suggestion. Although she was entitled to up to a year of unpaid leave under her employment contract, she was nonetheless discharged after less than eight months on leave, while she was undergoing treatment. (Id. at pp. 1245-1246.)
In Humphrey v. Memorial Hospitals Ass’n (9th Cir. 2001) 239 F.3d 1128 (Humphrey), a medical transcriptionist who worked for her employer for nine years with excellent performance reviews was terminated for absenteeism. (Id. at p. 1130.) Months earlier, she had obtained a psychiatric assessment indicating that her absences were most likely caused by her diagnosed obsessive compulsive disorder. She requested accommodation and was given a flexible work schedule but still had excessive “unscheduled” absences. (Id. at pp. 1131-1132) Her request to work at home was refused because she was ineligible under company policy, and when her absences continued she was fired. (Id. at p. 1133.) Her further request for a medical leave was also refused. (Ibid.) The Ninth Circuit reversed summary judgment for the employer, holding there was a genuine factual dispute as to whether a reasonable accommodation would have included allowing her to work at home or take a medical leave. (Id. at pp. 1135-1136.)
Finally, Nadaf-Rahrov held that an employer was not entitled to summary judgment for failure to accommodate, even though it had extended an 18-year employee’s leave for six months beyond the FMLA requirement, where the employee had sought an alternative position and was able to identify positions which opened up shortly after her discharge for which she may have been qualified. “[I]t may have been a reasonable accommodation for Neiman Marcus to extend Nadaf-Rahrov’s leave of absence for a limited period of time until a position became available that Nadaf-Rahrov could perform, particularly if Neiman Marcus could have anticipated the future opening.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp 969-970; see id. pp. 963, 979-980.)
None of these cases involved a situation in which the employer claimed to be unaware of the employee’s disability. Indeed, to the contrary, in each case it was absolutely clear that the employer was aware of the disability, as the parties were engaged in the interactive process. Most of the cases involved long-term employees; and in most cases the leave was granted in conjunction with a specific request for reassignment or other accommodation. In some cases the employee was entitled to a leave period which the company did not provide, contractually or by company policy, (Nunes, supra, 164 F.3d 1243 and Humphrey, supra, 239 F.3d 1128). And in others the leave of absence was discussed by way of crediting the employer with having made an accommodation, whether or not it was deemed sufficient (Jensen, Nadaf-Rahrov and Hanson). And in all of the cases (except Nunes) the employee’s disability had been firmly diagnosed before the leave was granted. The situation here is a far cry.
Even if Gutierrez’s communications with Nor-Cal were construed as requesting a medical leave of absence, he failed to follow appropriate procedures for such a request. The CBA specified that any leave of more than five days would require written approval from both the union and the employer and normally would not be granted for a period to exceed 30 days, which could be renewed monthly for up to a year. By October 29, Gutierrez had already missed three days of work. His doctor’s note indicating he could not return to work until November 8, if it was intended as a request for a leave of absence, should have been accompanied by both union and employer approval in writing. Unlike the plaintiffs in Nunes and Humphrey, Gutierrez does not now request that the company comply with its medical leave policy, but rather that it give him a special exemption from the employment contract.
In Nunes, the cause of the employee’s fainting spells was not determined, but since the employer asked her to go on medical leave, it could not deny that she was disabled.
Gutierrez has cited no case where an employer was found to have violated the FEHA because it failed to offer a leave of absence when the employer knew nothing more than that the employee was sick, injured, or in too much pain to report for work. He cites no case mandating a leave of absence every time an employee develops undiagnosed medical complaints, where there is no medical basis for determining how long a leave would be required, and especially where the employee is still on probation.
Ultimately, Gutierrez would have required more than three months off work to recuperate from his injury, whereas he had only worked at Nor-Cal for about a month. Although Gutierrez characterizes his desired accommodation as a “short leave of absence,” where the leave amounts to three times the duration of the employment that preceded it, a three-month leave of absence for an undiagnosed condition is not a reasonable accommodation as a matter of law.
5. Nor-Cal Did Not Violate The Requirement Of Engaging In An Interactive Process.
Section 12940, subdivision (n), requires employers to engage in good faith interaction to identify an effective reasonable accommodation “in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” Thus, before the duty to engage in interactive discussions is triggered, the disability must be “known” and a reasonable accommodation must have been requested. As discussed above, these prerequisites have not been met. (See King, supra, 152 Cal.App.4th at p. 443; Jensen, supra, 85 Cal.App.4th at p. 261 [“ ‘the interactive process is a mandatory rather than a permissive obligation on the part of employers... and... is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation. [Citation]’ ”].)
Nor-Cal could not have violated the FEHA’s requirement of participating in the interactive process until Gutierrez initiated that process by requesting accommodation of a specific disability. Thus, for example, in King, the employer was well aware of the plaintiff’s disability. Nevertheless, it was held that plaintiff did not present a triable issue as to whether he should have been accommodated by being taken off the “local sort,” because he did not make “the kind of specific request for a modified work schedule required to trigger an employer’s duty to provide accommodation.” (King, supra, 152 Cal.App.4th at p. 444.) King’s doctor’s note had released him to return to his “regular duties and regular hours” (id. at p. 443) after a medical leave; and although the employer knew he disliked the “local sort” work shift, “his failure to get additional clarification from his doctor to specifically restrict his hours and to communicate his limitations to his supervisors” negated his clam for failure to accommodate. (Id. at p. 444.) And King’s earlier complaints about the shift and the willingness of a former supervisor to relieve him of the shift did not create a triable issue of fact. (Ibid.) The same result would surely be true of a claim based on failure to engage in interaction.
Moreover, Nadaf-Rahrov held that “the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984; see id. atpp. 980-984.) Gutierrez has identified no modification or adjustment of the workplace that would have enabled him to perform as a cement truck driver or in any other capacity as an employee of Nor-Cal. For these reasons, we find no triable issue on Gutierrez’s claim that Nor-Cal violated the FEHA by failing to engage in the interactive process.
6. Gutierrez Failed To Provide Evidence That Nor-Cal’s Demonstrated Nondiscriminatory Reason For His Discharge Was Pretextual Or That The Discharge In Fact Involved Discriminatory Animus.
Nor-Cal presented evidence of a nondiscriminatory reasons for the discharge: because Gutierrez was absent for three consecutive days, and also because Gutierrez’s own testimony shows that he failed to follow the correct procedure for calling in sick to his supervisor. Nor-Cal emphasizes that due to the perishable nature of its product, prompt and dependable attendance is important to retain a job with the company. The company handbook states, “Work schedules change daily to comply with scheduled job production and customer needs. It is the responsibility of each employee to check with their supervisor daily, regarding their assigned time and location for the following day.” The handbook further cautions employees, “While it is recognized that an occasional illness or extenuating personal reason may cause unavoidable absence from work or tardiness, regular on-time attendance is required for continued employment.” Finally, the handbook provides, “If an employee is absent from work for one day without informing Nor-Cal, it will be assumed that the employee resigned and employment will be terminated as of the last day worked by the employee.” Gutierrez received a copy of the handbook when he was hired, and HR employee Vasseur reiterated the need to call in sick to his supervisor during employee orientation.
It is undisputed that Gutierrez failed to comply with these reporting policies because he never called in sick to Cast, the Antioch plant supervisor. Nevertheless, Gutierrez claims that he could alternatively call in sick to Bustos, and that he did make several calls to Bustos, as discussed ante. Even so, even those calls were not made before Gutierrez was scheduled to show up for work so as to allow Nor-Cal to find a replacement driver. On Wednesday, October 27, Gutierrez first reported his absence to Vasseur at 10:41 a.m. and to Bustos at 12:19 p.m., long after his scheduled start time of 8:00 a.m. On Thursday, October 28, Gutierrez did not call anyone at Nor-Cal until 4:51 p.m., although he was scheduled to report for work at 7:30 a.m. And on Friday, October 29, he began leaving messages for Vasseur at 10:16 a.m., again long after his scheduled start time, and he did not call Bustos at all. Nor-Cal demonstrated a nondiscriminatory reason for Gutierrez’s discharge.
Therefore, the burden shifted to Gutierrez to “ ‘offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.’ [Citation.]” (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th 864, 886.) The employee’s evidence to counter the employer’s showing of a nondiscriminatory reason for discharge must be “substantial.” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th 798, 806-807 & fn. 5.)
Gutierrez does not claim that the asserted reason for his termination was pretextual; rather, he claims that the absences themselves were the result of his disability and hence the termination for absence was, in effect, a termination based on his disability. In claimed support Gutierrez relies primarily on Humphrey, in which a long term employee’s termination for absenteeism withstood her employer’s summary judgment motion because the absences were caused by her obsessive compulsive disorder. (Humphrey, supra, 239 F.3d at pp. 1135-1136.) There, however, there was no question whatsoever that the employer was aware of the employee’s disability. The disability had been diagnosed and the parties were engaged in the interactive process. The question for trial in Humphrey was the inherently fact-specific one of which party was responsible for the breakdown in the process. Here, by contrast, the question is whether the process was ever initiated by the employee, as to which there is no genuine factual dispute.
Gutierrez also relies on Diaz v. Federal Express Corp., supra, 373 F.Supp. 1034, where the court acknowledged that a discharge for absenteeism can constitute disability discrimination if the absenteeism is a result of the disability. “[I]f the trier of fact finds that Plaintiff was disabled for purposes of FEHA, Defendant’s firing of Plaintiff on the basis of absences incurred as a result of that disability would not constitute a legitimate, non-discriminatory reason for terminating Plaintiff, and Plaintiff would be able to establish disability discrimination on the basis of Plaintiff’s prima facie case.” (Id. at p. 1065.) However, Diaz involved a specifically diagnosed mental disability, for which a psychiatrist had recommended that the employee receive a lateral transfer as an accommodation. (Id. at pp. 1042-1043.) This request served as a clear initiation of the interactive process, which the company failed to pursue. Nor-Cal’s lack of knowledge, as well as Gutierrez’s failure to request a reasonable accommodation, differentiate the setting here.
The present case is more akin to Brundage v. Hahn, supra, 57 Cal.App.4th at pp. 236-237, where an employee who failed to return from a vacation due to her bipolar disorder was lawfully terminated because she had not previously informed the employer of her disability. Even if the disability in fact caused the absence, the employer’s lack of knowledge negated any theory that the employee was discharged “because of” her disability. (See also id. at p. 237 [citing additional cases]; Phillips v. Quebecor World RAI, Inc., supra, 450 F.3d at pp. 311-312 [where employee was terminated for excessive absenteeism, some of which was related to a subsequently diagnosed head tumor, the termination did not violate the FMLA; the employee’s report that she was “sick” did not put the employer on notice that she had a “serious health condition” so as to trigger application of the FMLA].)
Gutierrez produced no evidence of pretext and no evidence of discriminatory animus. He essentially advocates that discrimination be found because his alleged disability was the cause in fact of his absenteeism, and hence of his termination. However, as just discussed, showing the disability was the cause in fact is not enough. (See King, supra, 152 Cal.App.4th at p. 436 [“It is the employer’s honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case”].)
Gutierrez testified in his deposition that he thought he had been terminated in part because of the erroneous fax that was sent to Vasseur, showing he had applied for disability benefits for depression while employed at another company. But even if the decision makers at Nor-Cal harbored some impression that this probationary employee was the kind of person who would rather collect benefits for not working than to work dependably for his agreed upon wage, that would not be a FEHA violation. Likewise, if Cast or George became aware of Gutierrez’s vacillating explanations of his physical incapacity, it might have led them to believe he was a hypochondriac or malingerer. But firing an employee based on an impression that he lacks a healthy work ethic, even if the belief is unjustified, does not constitute a violation of the FEHA. “ ‘[The FEHA] 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.... 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....’ [Citation.]” (Arteaga v. Brink’s, Inc., supra, 163 Cal.App.4th at p. 344.)
Nor-Cal rightly could terminate an employee who missed three consecutive days of work without notifying his supervisor. A termination for unreported absences, being an otherwise valid reason for termination, could not be turned into a discriminatory one, even if the facts ultimately proved that the absence was caused by the employee’s health issues amounting to a disability. We perceive no pretext in Nor-Cal’s adverse employment action—nor any violation of the FEHA.
7. Evidentiary Issues
Gutierrez claims the trial court erred in excluding several items of evidence, specifically: (1) his final paycheck and accompanying envelope, intended to show he did not receive his final paycheck until March 2005; (2) telephone bills showing times of phone calls purportedly made to Nor-Cal and especially the time at which Dr. Taborga’s absence excuse was faxed to the HR department on October 29, 2004; (3) Vasseur’s memorandum of January 25, 2005, in which she summarized her discussions with Gutierrez; and (4) certain statements in Dr. Taborga’s declaration concluding that Gutierrez suffered from a disability within the meaning of the FEHA.
Gutierrez also claims his notes and monthly planner should have been admitted as evidence. They were ruled admissible by the trial court.
We review these evidentiary issues for abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) We conclude that the evidentiary rulings were not erroneous, and even if they were, they were at most harmless error. (Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1243-1244 [error in excluding evidence opposing summary judgment is harmless because admission of evidence would not have changed the outcome].)
A. Final Paycheck and Envelope
Nor-Cal opposed admission of the final paycheck as irrelevant and immaterial hearsay. Gutierrez claims the documents were not hearsay because they were submitted not to prove the truth of the matters asserted, but to call into question the date upon which he was terminated. In fact, the final paycheck and accompanying envelope could not call into question the date of Gutierrez’s termination unless the matter stated (i.e., the postmark) were considered for its truth. Thus, it was hearsay and was not admissible on the theory advanced by Gutierrez.
Gutierrez cites People v. Whittaker (1974) 41 Cal.App.3d 303, 309, in which a car rental receipt was admitted over a criminal defendant’s hearsay objection on the theory that it was not admitted for the truth of the matter stated, but only to show that defendant had in his possession a receipt for rental of a car matching the description of one used in a robbery the day after he rented it. The Supreme Court has called Whittaker’s reasoning “ ‘clearly untenable and erroneous’ because if it were generally applied then ‘the truth of a document written by any declarant is established from the mere fact of possession of such document by a party.’ [Citation.]” (People v. Maki (1985) 39 Cal.3d 707, 712.)
Moreover, the postmark on the envelope is of such marginal relevance that its exclusion was not an abuse of discretion. Gutierrez admits in his opening brief that the paycheck and envelope “are not particularly relevant to any of the issues presented in this appeal.” We agree. The date of mailing of a final paycheck has little bearing on the actual date of termination and does not create a triable issue of fact. Even assuming arguendo that the paycheck and envelope were admissible, their exclusion was not prejudicial.
B. Gutierrez’s Telephone Bills
With respect to the telephone bills, Nor-Cal claimed they were not properly authenticated (Evid. Code, §§ 403, 1401; Code Civ. Proc., § 437c, subd. (d)), were inadmissible hearsay, and were irrelevant and immaterial. Gutierrez testified about several telephone conversations with Vasseur and Bustos. The telephone bills were relevant to establish the times at which the calls were made, the length of the calls, and the phone number which was called (e.g., Bustos, Vasseur or the fax machine).
We do not agree with Gutierrez that the phone bills were not submitted to prove the truth of the matters stated. As with the envelope, the existence of the phone bills alone, without considering their content for its truth, would have no relevance. Since the records were hearsay, Gutierrez would be required to bring them within an exception to the hearsay rule, such as the business records exception under Evidence Code section 1271. (People v. Sorrentino (1956) 146 Cal.App.2d 149, 162.) Such a record is not admissible, however, unless “[t]he custodian or other qualified witness testifies to its identity and the mode of its preparation.” (Evid. Code, § 1271, subd. (c).) This was not done.
Gutierrez further argues that the phone records were admissible to corroborate his testimony, citing McAllister v. George (1977) 73 Cal.App.3d 258, 263 and Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. These cases hold that a bill, otherwise inadmissible hearsay, may be admitted for the limited purpose of corroborating the testimony of a witness that he received and paid for services. (See also Pacific Gas & E. Co. v. G. W. Thomas Drayage Etc. Co. (1968) 69 Cal.2d 33, 42-43.) Gutierrez sought to use the bills for a different purpose, namely to prove that he made particular calls to particular phone numbers at particular times and dates.
None of the calls was disputed except the time at which the October 29 fax was sent to Vasseur. On this issue the phone bill shows the call was made at 3:01 p.m., whereas the legend on the fax and Gutierrez’s own testimony show it was made at 5:03 p.m. Thus, even if the bills were admissible as corroboration of Gutierrez’s testimony about the times at which he made other phone calls to Nor-Cal, they do not corroborate his testimony as to the time the fax was sent. Rather, he attempts to use them to show the fax was sent at a different time than that to which he testified. For this purpose, Gutierrez needed to have the phone records properly authenticated as business records by an employee of the telephone company. (See, e.g., People v. Vu (2006) 143 Cal.App.4th 1009, 1023.)
Finally, Gutierrez suggests that the telephone bills were admissible because they bore particular indicia of reliability. He cites no authority for exempting telephone records from the normal rules for admissibility of business records.
Even if we assume, however, that the telephone records should have been admitted, we find any error in their exclusion to have been harmless. As discussed at length above, even assuming the October 29 fax arrived at Nor-Cal at 3:01 p.m. rather than 5:03 p.m., such a dispute does not amount to a genuine issue of material fact because the fax itself provided insufficient information to put Nor-Cal on notice that Gutierrez had a FEHA-covered disability or that he was requesting accommodation for a disability.
C. Vasseur Memo
Nor-Cal objected to the Vasseur memo on grounds that it was not properly authenticated and in any case was inadmissible hearsay and was not an admission of the company because Vasseur was not an officer or managing agent or other person authorized to speak for Nor-Cal. Gutierrez claims the memo was admissible because Vasseur admitted the truth of its contents in her deposition and because, since George instructed Vasseur to prepare the memo, it was an adoptive or authorized admission under Evidence Code sections 1221 and 1222, or were otherwise admissible as a past recollection recorded under Evidence Code section 1237 or a prior inconsistent statement under Evidence Code section 1236.
Even assuming the memo was admissible, any error in excluding it was harmless. The memo did not differ materially from Vasseur’s deposition testimony. It stated that Gutierrez “began to call in sick to work each day” after he “fell ill.” However, the phrase “call in sick” cannot be construed to suggest that he had called in sick to the appropriate supervisor. Vasseur testified that she prepared the memo at George’s request to commemorate her own conversations with Gutierrez. She assumed Gutierrez was also calling in sick to Cast, as she had instructed him to do during orientation.
Indeed, Vasseur’s written memo is not particularly helpful to Gutierrez in that it quotes him as “repeatedly assuring” Vasseur that his malady “was not work related” and “as soon as he was well, he would be back in his truck and on the job.” It also says, “He told me he was passing gall stones, kidney stones, etc. I heard various stories.” These statements do not support Gutierrez’s claim that he notified Nor-Cal of a specific disability before he was discharged. Vasseur explained the memo during her deposition. We perceive no possible prejudice to Gutierrez in the trial court’s exclusion of the memo.
D. Dr. Taborga’s Legal Conclusions
Finally, Nor-Cal objected to the conclusions in Dr. Taborga’s declaration that Gutierrez’s left psoas muscle strain was a disability under the FEHA on grounds that it was a legal conclusion not properly the subject of expert medical opinion. The only part of the declaration excluded was paragraph 10, lines 24-27, which stated that “there can be no question that Mr. Gutierrez suffered from a physical disability within the meaning of the FEHA beginning on at least October 26, 2004.”
Gutierrez is correct that an expert is not precluded from opining on an ultimate issue. (Evid. Code, § 805.) Nevertheless, an expert’s opinion must be within the realm of his expertise. (Evid. Code, § 801.) As a physician, Dr. Taborga was qualified to express an opinion about Gutierrez’s diagnosis and symptoms. However, whether the psoas muscle strain constituted a disability within the meaning of the FEHA is a question of law upon which the doctor had no expertise. (See Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178-1179.)
Excluding the three lines of his declaration in which Dr. Taborga ventured his opinion on this legal conclusion was not an abuse of discretion, and in any case was harmless. Even if the psoas muscle strain was a disability, there is no evidence whatsoever that Gutierrez informed Nor-Cal that he had a psoas muscle strain before he was terminated.
DISPOSITION
The summary judgment in favor of Nor-Cal is affirmed.
We concur Haerle, Acting P.J., Lambden, J.