Opinion
B294779
03-08-2021
IVONNE LANZAS, Plaintiff and Appellant, v. ASTRAZENECA PHARMACEUTICALS et al., Defendants and Respondents.
Arkin Law Firm and Sharon J. Arkin; Doumanian & Associates and Nancy P. Doumanian for Plaintiff and Appellant. Morgan, Lewis & Bockius, Barbara A. Fitzgerald, Kathryn T. McGuigan, Thomas M. Peterson and Zachary W. Shine for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC599703) APPEAL from a judgment of the Superior Court of Los Angeles County, Deirdre H. Hill, Judge. Affirmed. Arkin Law Firm and Sharon J. Arkin; Doumanian & Associates and Nancy P. Doumanian for Plaintiff and Appellant. Morgan, Lewis & Bockius, Barbara A. Fitzgerald, Kathryn T. McGuigan, Thomas M. Peterson and Zachary W. Shine for Defendants and Respondents.
Ivonne Lanzas (appellant) appeals from a judgment entered after the trial court granted two motions for summary adjudication in favor of appellant's former employers, Amylin Pharmaceuticals ("Amylin"), Bristol-Meyers Squibb (BMS), and AstraZeneca Pharmaceuticals LP (AZ), as well as four individuals (collectively "respondents"), in this disability discrimination action.
Appellant initially named 13 individual defendants. She voluntarily dismissed several, and by the time respondents filed their first motion for summary judgment, the only remaining individual defendants were John Frank, Cynthia Vona, Phil Zobrist, Matt Bazzani, Kimberlynne Coppom, and Kelly Hardesty. Appellant includes in this appeal only four individuals: John Frank, Cynthia Vona, Kimberlynne Coppom, and Kelly Hardesty.
Appellant challenges the trial court's decision that she did not demonstrate that the continuing violations doctrine was applicable to her Fair Housing and Employment Act (FEHA) claims. She further challenges the trial court's ruling summarily adjudicating the following causes of action: second cause of action for failure to accommodate; third cause of action for failure to engage in the interactive process; her discrimination claims, including the first cause of action for discrimination on the basis of physical disability and medical condition; fourth cause of action for disparate treatment in violation of FEHA; and fifth cause of action for unlawful and disparate treatment and discrimination on the basis of sex, gender, pregnancy or pregnancy related medical condition in violation of FEHA; the tenth cause of action for intentional infliction of emotional distress (IIED); and her punitive damages claim.
We find no error in the trial court's decision summarily adjudicating these claims. Therefore, we affirm the judgment.
FACTUAL BACKGROUND
The parties
Appellant began working for Amylin in 2011 as a pharmaceutical sales representative specializing in diabetes treatments. In 2012, Amylin's diabetes treatment division was purchased by BMS, although appellant continued to be paid by Amylin until January 2014. Shortly thereafter (February 1, 2014) the same division was acquired by AZ. The acquisitions included all former Amylin sales representatives. Appellant's allegations crossed over all of these times. Appellant maintained her position throughout the corporate transitions.
Appellant's job duties included visiting physicians' offices and educating physicians on products by discussing the drugs and providing both samples and literature. Appellant was not required to report to an office, instead she was based at home and set her own hours. On a typical day appellant would call on approximately eight doctors from a target list. As part of her duties, appellant had to carry a laptop, medical literature, and a cart with medical samples that she provided to doctors she visited. The roller bag also contained ice packets. When full of ice packs and medication samples, it weighed nearly 20 pounds.
John Frank (Frank), BMS Senior District Business Manager, supervised appellant from spring 2013 until he left on leave before October 2013. From approximately April 2013 to January 2014, Dr. Cynthia Vona (Vona), BMS Executive Medical Director, was involved with discussions with appellant regarding her work restrictions, accommodations and worker's compensation claim relating to appellant's knee injury. Vona was never employed by AZ and did not interact with appellant after January 2014. Kimberlynne Coppom (Coppom), Commercial Business Director for BMS and AZ, was the regional director from approximately summer 2012 until January 2015. Kelly Hardesty (Hardesty), District Business Manager for BMS and AZ, was appellant's interim manager from approximately October 2013 until February 2014.
Appellant's knee injury
On October 1, 2012, while at a sales event in Texas, appellant injured her knee when she slipped and fell in a convention center bathroom. Appellant suffered a torn meniscus and sprain of the ACL. Her then employer, Amylin, granted her nearly seven months of leave to undergo knee surgery and recover, from October 2012 through approximately May 30, 2013. Appellant turned in all of her work status reports and medical reports to her employer. Appellant admits that her employer provided her with reasonable accommodations under FEHA during this time period.
Appellant's doctor released her to return to work at BMS with restrictions beginning April 30, 2013. Her restrictions included no lifting more than 10 pounds, a six-hour workday, limited use of her right leg, limited standing, walking and stooping.
From May 2013 through July 2013 appellant returned to active employment, but did not work in the field, as she was required to undergo training about BMS products and sales practices. This was unsupervised home-study training. During this period, appellant was not required to visit physicians or carry samples. She controlled how many hours she studied each day. Appellant did not recall ever studying for more than six hours per day.
On May 1, 2013, appellant met with her newly assigned supervisor, Frank, whom she informed of her doctor-imposed work restrictions and asked about how the company planned to accommodate her. Frank provided no response, instead, he referred her to "HR."
Vona, the Executive Medical Director for BMS, assisted employees with accommodation requests. If an employee had such a request, the employee could go to Vona who would assist in understanding the request from the doctor and presenting the information to "HR." Vona and appellant exchanged telephone calls and e-mails regarding appellant's accommodation requests. Vona requested permission to speak with appellant's doctor, so that she could clearly communicate the restrictions and the length of time for which the restrictions were being sought. Vona also filed a worker's compensation claim on behalf of appellant for the knee injury. Vona received work duty status reports submitted by appellant, who found Vona to be "judgmental" and "concerned" about why about her doctor requested the accommodations. Appellant was concerned that Vona was questioning appellant's need for the restrictions. Appellant felt that she was being discriminated against because Vona was "not believing" or "questioning" her restrictions. Vona had no recollection of telling anyone that she disagreed with appellant's doctor or the work restrictions.
When appellant returned to work, her territory had been changed from Valencia to East Los Angeles. The job was strenuous as she had to stand for long periods of time and carry weight. Appellant was approved to travel for training to New Jersey from June 3 to June 14, 2013. Appellant was advised that the training sessions were eight hours per day and classroom-based. Appellant did not inform anyone that she did not want to attend the training, however, she stated that she was concerned about exceeding her six hour workday requirement. Appellant was also required to attend an orientation in Orange County where she was required to attend for more than six hours per day. Nevertheless, she did not ask anyone if she could leave early.
Appellant's first day working in the field was scheduled for June 17, 2013, with continued work restrictions, including a 10-pound lifting restriction and a work day not to exceed six hours per day. However, when appellant returned from the training in New Jersey, she went on a four-week medical leave until approximately July 15, 2013 due to a miscarriage.
There is an immaterial conflict in the evidence as to whether appellant was on leave due to her miscarriage through July 15, 2013 or July 2, 2013.
After appellant returned to work on July 16, 2013, she was able to set her hours so that she could work six hour days. She was never told by any manager that she could not work a six-hour day. However, there were days when she was required to work more than six hours. Appellant was not able to go through her workday without lifting more than 10 pounds. At that time, appellant had begun sales details and had a bag that contained all her samples and all the literature for physicians. Although appellant communicated with Vona about this problem, Vona expressed that she could not understand why appellant still required restrictions. Vona had appellant fill out a form asking appellant's opinion as to how she could be accommodated. Appellant suggested that the company limit her sample allocation.
Appellant could not recall whether she requested that her employer "auto ship" the samples to her target buyers. Nothing in the record shows any such request.
Eventually BMS came up with a plan to manage her weight restriction by offering her two sample bags. She could keep an empty one in her car, and filled it with the samples she needed for each visit from the full bag. On October 7, 2013, appellant received a letter from the human resources department suggesting this accommodation, to which she responded that she still had to lift more than 10 pounds.
On November 6, 2013, appellant's doctor changed her disability status to "not disabled."
Appellant had a second surgery on her knee in August 2015, and her understanding was that the second surgery was necessary due to continuous strain.
Ethics investigation and 2013 year-end review
Frank left BMS prior to October 2013. Coppom then commenced an investigation into the team's poor performance. The investigation included reviewing all sales data for Frank's team, including appellant. In November 2013, Coppom met with Hardesty and asked her to help with the investigation of sales call data, including review of fuel logs and activity reports. During this initial meeting, Coppom did not mention any individual sales representatives by name.
Appellant became pregnant in August 2013 and informed Coppom and Hardesty of her pregnancy on January 9, 2014, when the three of them met to discuss appellant's 2013 year-end performance evaluation. Appellant received only positive feedback at the evaluation. However, she felt that Coppom's and Hardesty's "nonverbal communication" and "demeanor" were harassing. Appellant believed Coppom and Hardesty were upset, and she had no idea what they were thinking. She acknowledged that actual verbal communication was only positive. On the year-end review appellant received a poor rating (a "2" or "3" out of 5 total).
A few weeks after she informed Coppom and Hardesty of her pregnancy, appellant was contacted by Kim Walker of her company's ethics and compliance department, who asked to discuss possible fraud involving certain entries in appellant's sales visit logs. Appellant did not know why the investigation started. She also did not know the findings of the investigation, whether a report was prepared, or whether the investigation was ever completed.
At other times in her testimony, appellant states she was contacted by Noreen Brown of the ethics and compliance department. It is not clear whether there were two separate conversations with these two individuals.
Appellant sent management an email indicating that she felt that this alleged investigation of her activity was in retaliation for her medical conditions, including her knee injury and her pregnancy.
Appellant's pregnancy - related leaves
On January 24, 2014, the same day she was contacted about the ethics investigation, appellant went to her doctor and received an immediate "temporary medical leave" from January 24, 2014 through February 17, 2014. Once appellant went on leave, the investigation of her suspicious call activity stalled, and was never re-opened.
On February 1, 2014, appellant's employer transitioned from BMS to AZ. AZ permitted appellant to remain on leave. On February 17, 2014, appellant's doctor extended her leave until six to eight weeks after the birth of her child. AZ granted this leave request. AZ communicated with appellant regarding her leave and disability benefits throughout her pregnancy.
On April 6, 2014, appellant gave birth to her child, and on April 16, 2014, appellant e-mailed AZ to advise that her return date was extended for an additional four to six weeks, to June 27, 2014. AZ granted this extension of appellant's pregnancy disability leave (PDL). On May 21, 2014, appellant e-mailed AZ that her leave had been extended a third time, for an additional five and a half weeks, to August 4, 2014. AZ granted this additional extension. A letter appellant received from The Hartford, AZ's third-party benefits administrator, dated May 23, 2014, stated that appellant was "ineligible" for leave from May 18, 2014 through August 3, 2014 under the FMLA.
On June 17, 2014, appellant's doctor extended appellant's leave a fourth time, from August 4, 2014 through October 4, 2014 due to appellant's post-partum depression. On July 8, 2014, appellant was informed that she had exhausted her FMLA leave. On July 27, 2014, appellant exhausted her short-term disability benefits. AZ then informed appellant that if The Hartford determined she remained totally disabled beyond July 27, 2014, she would be placed on an unpaid extended disability leave effective July 28, 2014. Consistent with company policy, appellant was informed that her manager would be contacting her to collect her company property, including her work computer, drug samples, and company literature.
Appellant e-mailed her new manager, Phil Zobrist (whom she had never met in person) to request that he hold her position open. Zobrist informed her that he did not have authority over personnel issues but referred her to human resources. On August 11, 2014, a human resources worker e-mailed appellant in response to her questions about her employment status, "you are still considered an AZ employee." However, appellant was told that she could apply for an open position at the company when she was able to return to work. Appellant was asked to sign termination paperwork.
Appellant did not know whether any of her managers had contributed to the decision to terminate her employment.
Both parties acknowledge that appellant's termination date is a disputed fact. Appellant asserts that she was terminated in August 2014. Respondents assert that appellant was not terminated until January 2015, when AZ sent her a formal termination letter.
Further leave extensions and final termination
Between January 2014 and January 2015, appellant extended her leave at least six times. On January 5, 2015, appellant submitted to AZ a note from her doctor releasing her to return to work on January 12, 2015, however, appellant did not return to work on that date, but instead extended her leave again. Her new doctor gave an approximate return-to-work date of February 15, 2015. ~93AA 924-928)~
By January 28, 2015, appellant had been on leave from AZ continuously for over one year and had exhausted all permissible leaves. On January 27, 2015, Janet Taylor, in AZ's human resources department, advised appellant by letter that consistent with company policy regarding the length of appellant's leave of absence, appellant's employment was terminated effective January 28, 2015.
Appellant did not return to work with any employer until February 2017.
PROCEDURAL HISTORY
Department of Fair Housing and Employment (DFEH) claims
On November 3, 2014, appellant filed claims with DFEH against Amylin, BMS and AZ, alleging disability discrimination and related claims. She asserted respondents took adverse actions against her "[O]n or around August 11, 2014." The DFEH issued right to sue letters on November 3, 2014.
Complaint
Appellant filed her complaint in Superior Court on October 30, 2015. The operative first amended complaint (FAC) was filed on March 2, 2016. The FAC alleged causes of action against Amylin, BMS, AZ, and numerous individual defendants, some of whom were later dismissed. Appellant asserted ten causes of action: (1) disability discrimination; (2) failure to accommodate; (3) failure to engage in the interactive process; (4) sex, gender, and pregnancy discrimination; (5) disability or pregnancy discrimination; (6) wrongful termination, retaliatory discharge in violation of public policy; (7) failure to prevent harassment, discrimination, and retaliation; (8) violation of CFRA; (9) violation of Pregnancy Leave Act; and (10) intentional infliction of emotional distress (IIED). All causes of action were brought against Amylin, BMS, and AZ. The tenth cause of action for IIED also included the individual defendants.
Initial motion for summary adjudication
On December 29, 2017, respondents sought summary judgment or, in the alternative, summary adjudication.
After considering the submitted papers, on March 16, 2018, the trial court granted the motion in full as to BMS, Amylin, and the individual defendants. As to AZ, the motion was granted as to the first, second, third, fourth, fifth, sixth, seventh, and tenth causes of action.
The trial court granted the motion as to the discrimination causes of action (appellant's first, fourth, and fifth causes of action) on the ground that appellant was not a qualified individual for the position that she held. It noted that FEHA "'does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employee's essential duties even with reasonable accommodations.'" The trial court relied on federal cases cited by the respondents "holding that an employee who has taken or sought indefinite leave cannot be reasonably accommodated, and therefore does not constitute a qualified individual." The trial court assumed that appellant's termination date was, as appellant asserted, in August 2014. Based on appellant's nearly seven months of leave by that date, the trial court concluded that appellant was not a qualified individual as a matter of law.
As to appellant's second cause of action for failure to accommodate, the trial court granted respondents' summary adjudication motion because of appellant's failure to accommodate claims were based on her knee injury. Thus, all arose out of actions that took place before November 2013. Because appellant's DFEH claim was filed on November 3, 2014, the trial court held that appellant failed to exhaust her administrative remedies as to her claims that her employers failed to accommodate her knee injury.
As to appellant's third cause of action for failure to engage in the interactive process, the trial court granted the motion because appellant failed to identify what reasonable accommodations might have been made. The only accommodation appellant identified was to hold her position open indefinitely. Such accommodation was not reasonable, therefore summary adjudication of this cause of action was appropriate.
Appellant's sixth and seventh causes of action for wrongful termination and failure to prevent harassment were based solely on her claims of discrimination under FEHA. Accordingly, the trial court concluded that summary adjudication was appropriate as to these causes of action for the same reasons as the discrimination causes of action.
As to the tenth cause of action for IIED, the trial court concluded that nothing in appellant's complaint constituted extreme and outrageous conduct as a matter of law.
Second motion for summary adjudication
On April 13, 2018, AZ moved for summary judgment, or, in the alternative, summary adjudication, as to the only two causes of action remaining, the eighth cause of action for violation of the California Family Rights Act (CFRA), and the ninth cause of action for violation of the California Pregnancy Leave Act (CPLA). On August 8, 2018, the trial court granted this motion.
Final judgments and notice of appeal
Individual judgments were entered in favor of each defendant on October 18, 2018. Notice of entry of the judgments was served on November 8, 2018.
On December 24, 2018, appellant filed her notice of appeal.
DISCUSSION
I. Standard of review
A motion for summary judgment should be granted if the moving papers show that there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A party moving for summary judgment in a FEHA case must establish that (1) one or more elements of the employee's cause of action cannot be established, or (2) a complete affirmative defense to the cause of action exists. (Code Civ. Proc. § 437c, subds. (o)(1), (2), (p)(2).) Summary judgment is proper where the plaintiff has not provided evidence establishing every element of her prima facie case. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274-275.) The moving party may also present evidence conclusively negating an element of the plaintiff's cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) Once the employer meets this initial burden, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Id. at p. 845.)
In the case of a summary judgment granted in an employment case, we must "'decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]' [Citation.] Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate the plaintiff's claims." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253.) In doing so, we must accept as true the facts in the evidence of the party opposing the summary judgment motion, and the reasonable inferences that can be drawn from those facts. (Id. at p. 254.) We must view the evidence in the light most favorable to the plaintiff and liberally construe the plaintiff's evidence. (Ibid.) We may not weigh the credibility of the opposing party's evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39; overruled on other grounds in Perry v. Bakewell Hawthorne (2017) 2 Cal.5th 536, 540.) "'Where the evidence and inferences would allow a reasonable trier of fact to find the underlying fact in favor of a plaintiff in accordance with the applicable standard of proof, then a defendant's motion for summary judgment must be denied. [Citations].'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877.)
II. Continuing violations doctrine
"A plaintiff suing for violations of FEHA ordinarily cannot recover for acts occurring more than one year before the filing of the DFEH complaint." (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1400 (Jumaane). Because appellant's DFEH claim was filed on November 3, 2014, the trial court found that appellant's allegations based on events predating November 3, 2013, failed as a matter of law due to appellant's failure to exhaust her administrative remedies.
The trial court did not apply the continuing violations doctrine to consider appellant's allegations occurring prior to November 2013. In addressing the doctrine, the trial court stated:
"Although Plaintiff argues generally in opposition that all of her claims relate to her ultimate termination on August 11, 2014, she never explicitly addresses whether the continuing violation doctrine applies to her. As it is Plaintiff's burden to prove a continuing violation [citation], the Court concludes there is no basis for considering incidents predating November 3, 2013."
In spite of the trial court's determination that appellant failed to explicitly address this issue below, appellant argues on appeal that the continuing violations doctrine should be applied, and that the filing of her FEHA claim in November 2014 encompassed all of respondents' conduct from the inception of her knee injury in October 2012 until her effective termination in July 2014.
While appellant now states that her effective termination was July 2014, she alleged in her DFEH complaint that her termination occurred on or around August 11, 2014. This was the date the trial court relied on.
Appellant asserts that she did raise the continuing violation issue below. Appellant cites several pages of her memorandum in support of opposition to respondents' motion for summary adjudication. The referenced pages include a discussion of alleged conduct "like or reasonably related" to that contained in the administrative complaint. It also compares appellant's DFEH claim with the allegations in the complaint, arguing that her "civil complaint details the pattern and practice of discrimination against her that relates back to the claims in the DFEH complaint." While this discussion addresses the related content of the allegations in the complaint and the administrative claim, it does not specifically discuss the continuing violation doctrine. Appellant acknowledges that the discussion could have been more detailed, and asserts that page limitations precluded a more extensive discussion.
In her reply brief, appellant insists that the continuing violations doctrine was extensively argued before the court. A review of the cited portions of the transcript only serves to reaffirm the appellant's failure to adequately address the issue. In the first hearing, on March 12, 2018, the parties were permitted to address the trial court's tentative. At the close of the proceedings, the court permitted the parties additional briefing (one to two pages) and continued the hearing for additional argument. The court had the following exchange with respondents' counsel:
"[Respondents' counsel]: . . . I'm just a little confused. If I could stop for one second. What's the two-pager for?
"The Court: I think she wants to - since neither one of you are really talking about a continuing violation issue, I think that's what -
"[Respondents' counsel]: Well, let's be clear. There's no continuing violation issue theory alleged by the plaintiff in the first instance, right?
"The Court: It's the court's [sic] bringing this issue up. I think she wants to respond to it.
"[Respondents' counsel]: Okay. My point, though, is why would they - we've had no notice of
continuing violation theory on their part. Talk about due process. This case was filed October 30, 2015. They never raised the continuing violation theory.
"The Court: And they're continuing not to, basically."
Following oral argument, appellant moved to augment the record to include the two pages of supplemental briefing that the trial court allowed after the March 12, 2018 hearing. We granted appellant's motion to augment. The parties subsequently requested, and were granted, leave to file supplemental briefing addressing the augmented record material submitted by appellant. The briefing filed in the trial court shows that while appellant acknowledged that three elements must be established to make a showing of a continuing violation, she made no effort to establish two of those elements. The briefing in no way undermines the trial court's determination that the three elements of the doctrine were not sufficiently or explicitly established below.
Appellant then cites nearly 70 pages of the record from the continued hearing, at which the parties argued extensively on a range of issues in the court's tentative decision. Towards the end of the hearing, appellant's counsel stated: "Now, our position is that the continuing violation doctrine isn't necessarily applicable here." Counsel then continued to explain appellant's position that the conduct at issue occurred "within a year before the statutory period."
The cited pages show that the court granted appellant the opportunity to present a continuing violation theory, and appellant declined to make the case for a continuing violation in any coherent, unambiguous way. The trial court did not err in determining that appellant did not adopt or advocate the continuing violation doctrine, much less make the required showing.
In her supplemental brief filed after oral argument in this appeal, appellant argues that the continuing violations doctrine was raised below, and therefore not forfeited. However, she fails to establish that she set forth a prima facie claim of continuing violation sufficient to defeat summary judgment.
In spite of her failure to adequately present this issue below, appellant asks us to "assume the role of the trial court and reassess the merits of the motion." (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) "[A] party may not, for the first time on appeal, change the theory of the cause of action and may not raise on appeal issues not raised in the trial court." (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 988-989.) This rule applies in the context of summary judgment proceedings. (Ibid.) "[I]t would be unfair to a party who successfully moved for summary judgment to permit the opposing party on appeal to raise a new theory not included in the pleadings." (Ibid.) Any claim not "'"factually presented, fully developed and argued to the trial court"'" will not be considered for the first time on appeal. (Insurance Co. of State of Pennsylvania v. American Safety Indemnity Co. (2019) 32 Cal.App.5th 898, 922 (Insurance Co.).)
Application of the continuing violations doctrine requires a factual showing that "the conduct occurring outside the limitations period was (1) similar or related to the conduct that occurred within the limitations period; (2) the conduct was reasonably frequent; and (3) the conduct had not yet become permanent." (Jumaane, supra, 241 Cal.App.4th at p. 1402.) Appellant failed to present and fully develop this three-pronged factual showing at the trial court level. She may not use the appellate process to cure this omission.
The court noted that, even if appellant had developed this theory below, it was unlikely to find that appellant made this factual showing. The court focused on the lack of similarity between the conduct that occurred outside the limitations period and the conduct that occurred within the limitations period. The pre-November 2013 conduct "essentially turned on whether [respondents] violated [appellant's] medically imposed work restrictions," while the post-November 2013 allegations "involve whether [respondents] wrongfully terminated [appellant] when she sought leave based on her pregnancy and knee injury." In sum, the trial court explained, "the earlier allegations deal with the type of accommodations offered or enforced when [appellant] returned to work; the later allegations deal with whether additional leave would be permitted."
Because appellant failed to make the required factual showing below, we decline to address the issue further. (Insurance Co., supra, 32 Cal.App.5th at pp. 922-923.)
Because we find that appellant did not adequately assert the continuing violation doctrine below, we decline to discuss in detail appellant's arguments regarding whether the three employers should be considered one and the same and whether the alleged course of action had acquired a degree of permanence. We further decline to discuss Blue Fountain Pools and Spas Inc. v. Superior Court of San Bernardino County (2020) 53 Cal.App.5th 239, 251-252, raised in appellant's reply brief, as it is raised in connection with these inconsequential issues.
III. Failure to accommodate and failure to engage in interactive process causes of action
The trial court based its decision to grant summary adjudication on appellant's second and third causes of action for failure to accommodate and failure to engage in the interactive process on its conclusion that incidents prior to November 2013 could not be considered. The court noted that "[appellant's] allegations regarding [respondents'] failure to accommodate her knee injury all arise prior to November 2013." Appellant argues that even considering only the evidence after November 2013, appellant set forth triable issues of fact as to these causes of action.
"The FEHA 'does not prohibit an employer from . . . discharging an employee with a physical or mental disability, . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations.'" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1002.) However, the FEHA imposes on the employer two separate obligations: the obligation to make reasonable accommodation; and the obligation "'to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations . . . in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.'" (Id. at p. 1003.) "An employer is not required to make an accommodation 'that is demonstrated by the employer or other covered entity to produce hardship to its operation.'" (Id. at p. 1003.)
A. Failure to engage in the interactive process
" '[T]he interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and . . . this obligation is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation.' [Citation]." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (Jensen).) "To prevail on a claim for 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." (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379, citing Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1018.) The employee "should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage. [Citation]." (Nealy v. City of Santa Monica, supra, at p. 379.) "The California Legislature has expressly affirmed the importance of the interactive process to identify reasonable accommodation." (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 973-974 (Nadaf-Rahrov).)
Appellant's failure to engage in the interactive process cause of action thus turns on the questions of whether she requested workplace accommodations and whether she has identified any specific reasonable accommodations that should have been offered to her during the applicable time frame. We review the facts favorably to appellant.
On November 5, 2013, appellant was declared "not disabled." The applicable time period began November 3, 2013. There is no evidence that she requested work restrictions from her knee injury after November 2013. It appears from the record that appellant worked from November 2013 to January 24, 2014, when appellant went on pregnancy leave. Appellant was then on leave continuously from January 2014 until her termination in late July or early August 2014. There is no evidence that appellant ever offered to return to work under any circumstances. However, in July 2014, she wrote to Zobrist and asked if he could hold open her position until she could return to work, adding that her "current" return-to-work date was October 4, 2014. She did admit that this return-to-work date was uncertain, explaining, "I hope to recover as soon as possible but unfortunately what I am experiencing doesn't just have an on and off switch." Zobrist responded that he lacked the authority to extend appellant's leave, and, "As this position has been vacant for 6 months, we are unable to hold the position open any longer and we will be moving forward with posting the job opening."
Appellant asserts that on December 18, 2013, her doctor re-imposed restrictions, including no lifting over 25 pounds. However, there is no evidence in the record that appellant was ever asked to lift more than 25 pounds. The record shows that appellant's roller bag, when full of ice packs and medication samples, weighed nearly 20 pounds. The December 18, 2013 restriction does not limit appellant's workday hours. Appellant further asserts that on January 2, 2014, her doctor re-imposed the 10 pound weight limit. However, appellant admits she does not recall ever sending her employer (BMS at the time) notice of these renewed restrictions. She went on leave three weeks later, on January 24, 2014, which leaves only a three week period during which any knee restrictions could have been at issue. Because the record does not reveal that appellant informed her employer or had any discussions with her employer, about the renewed restrictions at that time, there is no evidence that the knee restrictions were at issue during the relevant time period. Thus, appellant's knee injury, and the accommodations she requested, are not within the scope of this lawsuit.
As set forth above, her actual termination date is disputed, but we view this fact in the light most favorable to appellant.
Thus, the only evidence that appellant requested accommodation during the relevant time period, was that respondents keep her position open until she could return. The issue then is whether this would have been a reasonable accommodation. Appellant cites no law suggesting that it is reasonable for an employer to be required to keep open indefinitely an employee's position, while the employee is on leave and unable to work. "'Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.'" (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227; see also Larson v. United Natural Foods West Inc. (9th Cir. 2013) 518 F.App'x 589, 591 ["an indefinite, but at least six-month long, leave of absence . . . is not a reasonable accommodation"]; Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235, 1242 [termination of employee who requested four month leave reasonable as a matter of law when employee made no factual showing that she could perform her job duties as boutique manager].) As appellant did not identify any other reasonable accommodation, her claim for failure to engage in the interactive process fails as a matter of law.
Appellant argues that her leave request was not indefinite, but that she informed AZ in July of 2014 that her expected date to return to work was October 4, 2014. In response, appellant was informed that when she was approved to return to work, she could apply for any position for which she was qualified. However, she was not guaranteed any particular position. Appellant's leave was at that time considered by AZ to be "unpaid extended disability leave." Even assuming appellant's leave was not indefinite, there is no authority suggesting that keeping an employee's position open for more than six months is a reasonable accommodation for any employer.
B. Failure to reasonably accommodate
Appellant's cause of action for failure to accommodate is also restricted to the period beginning November 3, 2013. Thus, it does not include the months during which she worked with restrictions due to her knee injury. From November 6, 2013, appellant was not known to be under a disability from that injury. From late January 2014, until her termination in August 2014, appellant was permitted nearly seven months of continuous pregnancy-related leave. Appellant requested no other accommodation during this period, and there is no suggestion that AZ could have done anything to accommodate her. As set forth above, appellant's request that her job be kept open indefinitely was not a reasonable accommodation.
Appellant cites Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th 245 for the proposition that, on summary judgment, courts place the burden on an employer to show whether it offered reasonable accommodation to an employee. (Id. at p. 263.) "'To put the entire burden for finding a reasonable accommodation on the disabled employee or, effectively, to exempt the employer from the process of identifying reasonable accommodations, conflicts with the goals of the ADA.'" (Id. at p. 261.) Jensen involved a bank employee who suffered posttraumatic stress disorder after an attempted bank robbery. The employee repeatedly applied for "nonbranch" positions at the bank but was not hired for those jobs. (Id. at p. 252-253.) The case does not support appellant's position that respondents did not accommodate her. Unlike the employee in Jensen, appellant made no effort to return to work during the time period in question.
The Jensen court stated, in dicta, that "Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future." (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 263; see also Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338 (Sanchez) ["a disabled employee is entitled to a reasonable accommodation - which may include leave of no statutorily fixed duration - provided that such accommodation does not impose an undue hardship on the employer"].) However, in Jensen, "both parties understood early on that [the employee] was unlikely ever to be able to return to branch work." (Jensen, at pp. 263-264.) Jensen does not stand for the proposition that respondents were required to keep appellant's job open indefinitely.
Appellant also cites Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935 (Prilliman) for the proposition that an employer who is aware of an employee's disability must make reasonable accommodations even if the employee has not requested such accommodations. Prilliman involved an airline pilot who was discovered to be HIV positive and placed on medical disability leave. (Id. at pp. 943-944.) The Prilliman court determined that there were triable issues of material fact as to whether the employer fulfilled its duty of reasonable accommodation. While the employer offered him insured disability leave, the record did not provide enough facts "to ascertain whether [the employer] . . . has a policy of attempting to find alternative positions for its employees, or whether, without undue hardship, it could have found an alternative position for [the pilot]." (Id. at p. 954.) Here, in contrast to Prilliman, appellant was not placed on leave against her will. Instead, it was she who chose her own accommodation - a leave of absence. Respondents reasonably accommodated her during the time period in question with over six months of leave.
IV. Discrimination causes of action
Appellant next challenges the trial court's grant of summary adjudication on her discrimination claims. These include her first cause of action for discrimination on the basis of physical disability in violation of FEHA; fourth cause of action for disparate treatment in violation of FEHA; and fifth cause of action for discrimination on the basis of gender, pregnancy, or pregnancy-related medical condition in violation of FEHA. The trial court's decision on these claims was based on its conclusion that appellant was not a "qualified individual" under FEHA.
Because the trial court granted summary adjudication as to appellant's sixth and seventh causes of action based on the grant of summary adjudication on the first, fourth, and fifth causes of action, this discussion also encompasses the sixth and seventh causes of action.
When a party brings a discrimination claim and there is no direct evidence of discrimination, courts engage in a three-part burden-shifting test under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 and Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355. Under this test, appellant first had to establish a prima facie case of unlawful discrimination. (Guz v. Bechtel National, Inc., supra, at p. 354.) To show a prima facie case of unlawful discrimination, appellant had to show: (1) she had a disability; (2) she was otherwise qualified to do her job; (3) her employer took an adverse employment action against her; and (4) some other circumstance suggests a discriminatory motive. (Id. at p. 355.)
The record shows that appellant failed to make this prima facie showing. The only alleged adverse action taken against appellant during the relevant time period was her termination, which according to her, occurred in August 2014. By then, appellant had been unable to work at her job, with or without restriction, in over six months, which renders her unqualified to bring a FEHA claim. As the Supreme Court explained, "in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation." (Green v. State of California (2007) 42 Cal.4th 254, 262; see also Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 975. ["An employer is not liable for discharging an employee with a disability unless the employee was able to perform the essential functions of his or her job with or without accommodation."].) Because appellant had not been able to perform her job for over six months, she did not meet this burden.
Because we decide this issue on the ground that appellant was not a qualified individual under FEHA, we decline to address the parties' arguments regarding whether any of appellant's employers took an adverse action against her.
Appellant argues that she was entitled to additional leave after she had exhausted the leave available under the Pregnancy Disability Leave Law (PDLL) and California Family Rights Act (CFRA). In support of this argument, appellant cites Sanchez, supra, 213 Cal.App.4th 1331, where that plaintiff was diagnosed with a high-risk pregnancy and was unable to work. She was abruptly terminated after she exhausted her leaves under the PDLL and CFRA. (Id. at pp. 1334-1335.) The matter was decided on demurrer, after the plaintiff's employer argued that it had provided plaintiff with all the leave mandated by the PDLL and CFRA. In opposition, plaintiff argued that providing additional leave up until shortly after she gave birth to her child was a reasonable accommodation for a known disability. (Id. at p. 1335-1336.) The Sanchez court held that a plaintiff with a high-risk pregnancy may be entitled to more leave under FEHA than the time allotted by the CFRA and PDLL. In response to the employer's argument that she was not a qualified individual because she could not perform her job duties at the time of her firing, the Sanchez court emphasized that the plaintiff provided evidence that "had she been granted additional leave until childbirth, she would have been able to perform the essential functions of her job with little or no further accommodations." (Id. at pp. 1340-1341.) This evidence "disposed of any contrary inference that she was 'unable to perform . . . her essential duties even with reasonable accommodations.'" (Id. at p. 1341.) The court stated, "A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA." (Ibid.) Thus, for the purposes of demurrer, the plaintiff had stated a cause of action. (Ibid.)
Preliminarily, the matter before us was not decided at the demurrer stage, but on the evidence presented at the motion for summary adjudication. Appellant was permitted to state a cause of action for discrimination, despite the fact that she had exhausted all of her paid leave time at the time of her termination. Further, appellant's disability was not a high-risk pregnancy that had a certain end date. Instead, her diagnosis was that of depression - a condition that, as appellant admitted, does not have an "on and off switch." While the employer in Sanchez may have been required to provide leave up to the time of childbirth under the employee's specific declaration that she would be able to perform her job following childbirth, appellant made no such specific representations regarding her diagnosis of depression. Appellant's leave had already been extended a number of times, and her employer was not required to further extend it in the absence of a showing that appellant was able to perform her job.
Appellant argues that the extension of her leave in mid-June 2014 set a proposed return date of October 4, 2014. Thus, appellant argues, she had a finite return date. However, given the uncertain nature of her disability, and the many previous extensions of her leave, she did not meet the burden of showing she was then able to perform her job. Regardless of the end date of her most recent extension, she did not meet the threshold showing that she was a qualified individual in order to move forward with her discrimination claims. (Green v. State of California, supra, 42 Cal.4th at p. 262; Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at pp. 226-227.)
The trial court noted that appellant's conduct following her purported termination in August 2014 further supported the finding that appellant's leave was properly characterized as indefinite. Evidence in the record showed that appellant requested leave through January 12, 2015, then again through February 15, 2015. Then, after AZ officially terminated appellant in January 2015, appellant remained unemployed through February 2017. In viewing the facts favorably to appellant, and assuming her final termination was August 2014, we decline to consider these post-termination facts.
Appellant argues that AZ made no showing that her request for further leave would cause hardship to the employer's operations. Appellant argues that pursuant to Government Code section 12490, subdivision (m), an employer is required to make reasonable accommodations to a disabled employee unless it produces undue hardship to the employer. However, the undue hardship analysis is not part of the qualified individual analysis. Where the plaintiff is not a qualified individual, the court need not perform an undue hardship analysis. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227; Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 985.) Further, Zobrist's letter to appellant in July 2014 sufficiently indicated that AZ was experiencing hardship from appellant's absence. "As this position has been vacant for 6 months, we are unable to hold the position open any longer and we will be moving forward with posting the job opening." Appellant cites no law suggesting that AZ was required to provide more specific facts regarding hardship. Further, case law suggests that prolonged leaves are harmful to employers. (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at pp. 226-227; Larson v. United Natural Foods West, Inc., supra, 518 F.App'x 589, 591; Lawler v. Montblanc North America, LLC, supra, 704 F.3d at p. 1242.)
V. IIED cause of action
The elements of the tort of IIED are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 803.) Conduct to be outrageous must be so extreme as to exceed all bounds of what is usually tolerated in a civilized community. (Ibid.) The trial court granted respondents summary adjudication on this cause of action because appellant failed to allege extreme and outrageous conduct as a matter of law.
Appellant argues that violations of FEHA have been held to give rise to a claim of IIED. (Citing Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1129; Aguilar v. Atl. Richfield Co., supra, 25 Cal.App.4th at p. 826.) Appellant further argues that conduct of an employer or one of its agents or employees may give rise to a claim of IIED. (Citing Calero v. Unisys Corp. (2003) 271 F. Supp.2d 1172, 1178.) Appellant claims that respondents' conduct may be considered extreme and outrageous because her work restrictions were disregarded with cavalier indifference; her requests for medical leave were constantly questioned; respondents made no serious effort to accommodate her work restrictions; and she was subject to an allegedly sham investigation regarding her call activity.
As respondents point out, the statute of limitations for IIED claims is two years. (Code Civ. Proc., § 335.1). Thus, appellant's claims for IIED are limited to acts occurring after October 30, 2013.
Appellant's complaint was filed October 30, 2015.
Appellant cites no evidence of specific conduct occurring between October 2013 and her termination that was extreme or outrageous. She cites no law suggesting that AZ's decision to terminate her in August of 2014 was extreme or outrageous. In fact, the law suggests that a termination decision, like other "personnel management activity[,] is insufficient to support a claim of [IIED], even if improper motivation is alleged." (Janken v. GM Hughes Elecs. (1996) 46 Cal.App.4th 55, 80.)
Summary adjudication as to the IIED cause of action was properly granted.
Because we have found that the trial court properly granted summary adjudication as to all causes of action appealed, we decline to address appellant's claim that the trial court erred in granting summary adjudication of her punitive damages claims. Punitive damages may be awarded if "the defendant has been guilty of oppression, fraud, or malice. . . ." (Civ. Code § 3294, subd. (a).) A corporate defendant may be held liable for punitive damages for such malicious acts by employees if the employees held the position of corporate "officer, director, or managing agent of the corporation." (White v. Ultramar (1999) 21 Cal.4th 563, 572-573.) Appellant has failed to state any viable cause of action. Therefore, the trial court properly granted summary adjudication on appellant's punitive damages claim.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST