Opinion
Case No. 2:22-cv-04349-MCS-AS
2023-06-30
Steven MADICK, an individual, Plaintiff, v. PRESIDIO, INC.; and Does 1 to 20, inclusive, Defendants.
Mark Mazda, Law Office of Mark Mazda, Irvine, CA, for Plaintiff. Matthew A. Tobias, Chenxi Lu, Emily Anne Papania, Sheppard Mullin Richter and Hampton, LLP, Los Angeles, CA, for Defendants.
Mark Mazda, Law Office of Mark Mazda, Irvine, CA, for Plaintiff. Matthew A. Tobias, Chenxi Lu, Emily Anne Papania, Sheppard Mullin Richter and Hampton, LLP, Los Angeles, CA, for Defendants.
ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 21)
MARK C. SCARSI, UNITED STATES DISTRICT JUDGE
Defendant Presidio, Inc. moves for summary judgment as to all of Plaintiff Steven Madick's claims. (Mot., ECF No. 21-1.) Plaintiff filed an opposition, (Opp'n, ECF No. 22), and Defendant replied, (Reply, ECF No. 23). The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15.
Defendant submitted objections to some of Plaintiff's evidence. The Court concludes that it need not resolve many of the objections at this time. To the extent the Court relies on objected-to evidence in this Order, the relevant objections are OVERRULED. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006).
I. BACKGROUND
On August 10, 2017, Defendant "offered Plaintiff the position of Area Vice President -West based out of the Company's Irvine, California office." (Pl.'s Statement of Genuine Disputes ("PSGD") ¶ 14, ECF No. 22-3.) As Area Vice President, "Plaintiff was responsible for leading, building, and developing presales and core post sales engineering teams, as well as project managers, to achieve [Defendant's] operational objectives and growth." (Id. ¶ 15.) Plaintiff's offer letter advised him to review Defendant's Employee Handbook & Code of Conduct (the "Handbook") as well as the benefits plans available to employees. (Id. ¶¶ 3, 16.) Plaintiff accepted Defendant's employment offer on August 14, 2017, and entered into an employment contract (the "Agreement") with Defendant on August 23, 2017. (Id. ¶ 17.)
The terms of the Agreement stated that Plaintiff was to "receive an annual base salary (the 'Base Salary') of no less than $265,000, payable in accordance with the Company's regular payroll practices." (Madick Decl. Ex. A ("Agreement") § 3(a), ECF No. 22-1.) The term "regular payroll practices" is not defined in the Agreement. (See generally id.; Reply 4-5; Opp'n 13-14.) Pursuant to the Agreement, Plaintiff's Base Salary could be "increased but not decreased" during his employment. (Agreement § 3(a).) The Agreement also stated that Plaintiff was eligible to "participate in employee benefits and perquisite plans, practices, policies, and programs generally applicable to employees of the Company on substantially the same terms applicable to similarly situated senior employees of the Company from time to time." (Id. § 3(c).)
"Around August 2021, Plaintiff notified Presidio that he may be requesting a leave of absence." (PSGD ¶ 22.) The Handbook states "that all employee medical leaves of absence and/or requests for [short-term disability] are handled through Presidio's third-party administrator, Guardian." (Id. ¶ 8.) Upon receiving Plaintiff's notice, Defendant's Human Resources Business Partner, Amanda Lopez, "provided Plaintiff with detailed instructions regarding how to request this leave through" Guardian. (Id. ¶ 23.) Ms. Lopez "informed Plaintiff that he was eligible for [Family Medical Leave Act ('FMLA') leave] and that he had the option to use up to 80 hours of [paid time off] to cover the two-week waiting period required under" Defendant's short-term disability policy. (Id. ¶ 24.) "On August 31, 2021, [Ms.] Lopez also provided Plaintiff with a link to the Company's Handbook so that he could re-familiarize himself with Presidio's leave of absence policies and procedures, which contains links to the [short-term disability] benefits summary." (Id. ¶ 25.)
The precise nature of the disability or medical condition giving rise to Plaintiff's request is not made clear in the parties' arguments, but Plaintiff declares that he has "3 bulging discs in [his] spine, 1 cracked vertebrae [sic], and migraine headaches." (Madick Decl. ¶ 10.)
Guardian approved Plaintiff's short-term disability leave beginning on September 24, 2021, and continuing through January 6, 2022. (Id. ¶ 33.) "Plaintiff was also approved for 12 weeks of leave under the FMLA and [California Family Rights Act ('CFRA')] during this period." (Id.) During Plaintiff's short-term disability, he received $3,000 per week, a rate of pay roughly equivalent to $156,000 per year during that period. (Id. ¶ 34.)
In December 2021, Plaintiff provided Defendant an update concerning his current condition and asked for guidance about a possible transition to long-term disability ("LTD"). (Id. ¶ 59.) Bharti Cunningham, Defendant's Vice President responsible for benefits and payroll issues, (Cunningham Decl. ¶¶ 1, 3, ECF No. 21-3), "reminded Plaintiff to inform Guardian of this request to extend his leave into LTD as Guardian would be responsible for approving it," (PSGD ¶ 60). Soon "[t]hereafter, Plaintiff applied for LTD leave and benefits through Guardian." (Id. ¶ 62.)
On January 19, 2022, Ms. Lopez sent Plaintiff a letter stating Defendant's "obligation under the Family Medical Leave Act ha[d] been fulfilled" and that Plaintiff's "former position [was] no longer available to [him]." (Madick Decl. Ex. C ("Lopez Letter"), ECF No. 22-1.) The letter continued, "If at a time in the future you are able to return to work you may apply for any available position for which you are qualified." (Id.) The letter also stated that Plaintiff's employment would end if he was approved for long-term disability or was no longer on an approved leave of absence. (Id.) The letter also informed Plaintiff that his enrollment in the "Company's medical, dental and vision plan(s)" and his "participation in the Presidio 401K Plan" would "continue until" he was "terminated from the company as indicated above." (Id.)
"On February 8, 2022, Presidio's Senior Director of Human Resources, Claudia Bambino, informed Plaintiff that his request for LTD had been approved by Guardian effective retroactively to January 7, 2022." (PSGD ¶ 67.) The parties dispute the exact date of Plaintiff's termination but agree that he was terminated no later than February 8, 2022. (See Opp'n 22 n.2.)
On April 26, 2022, Plaintiff initiated this lawsuit. (Compl., ECF No. 1-1.) The Complaint identified five causes of action against Defendant: 1) breach of contract; 2) disability discrimination, retaliation, failure to accommodate, and failure to engage in the interactive process in violation of the Fair Employment and Housing Act ("FEHA"); 3) discrimination and retaliation for requesting and taking leave under the CFRA; 4) discrimination and retaliation for requesting and taking leave in violation of the FMLA; and 5) wrongful termination in violation of public policy. (Id. ¶¶ 21-81.) Asserting diversity jurisdiction, Defendant removed the case to federal court. (Notice of Removal, ECF No. 1.)
II. LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing law, the resolution of that fact might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548, and the court must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party, Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). To meet its burden,
[t]he moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. at 587, 106 S.Ct. 1348.
III. ANALYSIS
A. Breach of Contract Claim
In his opposition, Plaintiff argues that Defendant breached Section 4(a) of the Agreement by firing Plaintiff even though he had not been absent from work for 180 days, that Defendant breached Section 4(b) by terminating Plaintiff without cause, and that Defendant breached the Section 3(a) by reducing and not paying his Base Salary when he was on a short-term disability leave. (Opp'n 4-18.) "Unless a plaintiff includes allegations in her complaint or informs the defendant before the close of discovery of her intent to rely on previously undisclosed allegations, she may not assert them for the first time in opposing summary judgment." McKinney v. Am. Airlines, Inc., 641 F. Supp. 2d 962, 982 (C.D. Cal. 2009) (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1291-94 (9th Cir. 2000)); see also Ins. Co. of N. Am. v. Moore, 783 F.2d 1326, 1328 (9th Cir. 1986) (holding that the district court did not err by refusing to award relief on summary judgment with respect to an unpleaded cause of action). The only breach actually pleaded in the Complaint is Defendant's alleged failure "to pay Madick all of the amounts due Madick [sic] under the contract." (Compl. ¶ 24.) Accordingly, Plaintiff's so-called "first" and "second" theories of breach may not be raised for the first time in opposition to Defendant's motion for summary judgment and are not considered as part of the Court's analysis. McKinney, 641 F. Supp. 2d at 982.
With respect to the theory of breach pleaded in the Complaint, Plaintiff argues that Defendant failed to pay him his
Base Salary while he was on short-term disability leave. Instead, it paid him a reduced amount, even though Presidio personnel told him that he would get his full salary while on the leave, and even though his written contract, which Presidio wrote, does not allow Presidio to pay him less than his full Base Salary while he is on a disability leave.(Opp'n 10.) As noted above, the Agreement states that Plaintiff was to receive his Base Salary "payable in accordance with the Company's regular payroll practices," but the term "regular payroll practices" is not defined. (See Agreement § 3(a).) The Agreement also states that Plaintiff's Base Salary could not be reduced during his period of employment. (Id.) Consequently, to determine whether there is a triable issue of fact as to whether Defendant breached its obligation, the Court must first identify the scope of Defendant's "regular payroll practices." (Agreement § 3(a).)
"When interpreting a contract, the Court will give priority to the parties' intentions as reflected in the four corners of the agreement." GMG Cap. Invs., LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 779 (Del. 2012). A court must
The terms of the Agreement state that it is to "be governed by and construed in accordance with the laws of the State of Delaware without reference to principles of conflict of laws." (Agreement § 12(a).) California's Supreme Court has recognized a strong preference towards enforcing of choice-of-law clauses, and the Court sees no reason why the relevant provision should not be enforced in this case. See Nedlloyd Lines B.V. v. Superior Ct., 3 Cal. 4th 459, 462, 11 Cal.Rptr.2d 330, 834 P.2d 1148 (1992).
interpret clear and unambiguous terms according to their ordinary meaning. Contract terms themselves will be controlling when they establish the parties' common meaning so that a reasonable person in the position of either party would have no expectations inconsistent with the contract language. A contract is not rendered ambiguous simply because the parties do not agree upon its proper construction. Rather, an ambiguity exists when the provisions in controversy are fairly susceptible of different interpretations or may have two or more different meanings. Where a contract is ambiguous, the interpreting court must look beyond the language of the contract to ascertain the parties' intentions.Id. at 780 (cleaned up). "If a contract is unambiguous, extrinsic evidence may not be used to interpret the intent of the parties, to vary the terms of the contract or to create an ambiguity." Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997). If, however, "there is uncertainty in the meaning and application of contract language, the reviewing court must consider the evidence offered in order to arrive at a proper interpretation of contractual terms." Id. "Delaware adheres to the 'objective' theory of contracts," which holds that "a contract's construction should be that which would be understood by an objective, reasonable third party." Est. of Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010). "[W]here reasonable minds could differ as to the contract's meaning, a factual dispute results and the fact-finder must consider admissible extrinsic evidence. In those cases, summary judgment is improper." GMG Cap. Invs., 36 A.3d at 783 (footnote omitted); accord Aleynikov v. Goldman Sachs Grp., Inc., 765 F.3d 350, 365 (3d Cir. 2014) (citing GMG Cap. Invs., 36 A.3d at 783, and reversing district court's grant of summary judgment because extrinsic evidence of contractual meaning raised a genuine issue of material fact).
The Court concludes that the meaning of Defendant's "regular payroll practices" is ambiguous. The term is not defined in the Agreement and is not a phrase bandied about in regular parlance to a degree that the Court can discern its "ordinary meaning" without greater context. GMG Cap. Invs., 36 A.3d at 783. Nor is there any evidence suggesting that the phrase "has attained the status of a term of art," or that it is "established legal terminology" such that the Court would be obliged to apply any specialized definition. Penton Bus. Media Holdings, LLC v. Informa PLC, 252 A.3d 445, 461 (Del. Ch. 2018) (internal quotation marks omitted). Thus, the phrase is "fairly susceptible of different interpretations" or meanings, GMG Cap. Invs., 36 A.3d at 783, and the Court should consider "any admissible extrinsic evidence that may shed light on the expectations of the parties at the time they entered into the Agreement," Eagle Indus., 702 A.2d at 1233.
Defendant argues that its "regular payroll practices" are consistent with the policies and procedures outlined in the Handbook and benefits plans. (See Mot. 2-3.) The offer letter that Defendant sent to Plaintiff advised him to review the Handbook and benefits plans prior to signing the Agreement. (PSGD ¶ 16.) The Handbook describes Defendant's policies with respect to certain payroll related issues including medical and disability insurance, 401(k) contributions, cell phone reimbursement, as well as some aspects of employee pay during short-term disability. (Cunningham Decl. Ex. 1 ("Handbook") §§ 3.3, 7.1, 7.4, 7.7, ECF No. 21-3.) Defendant contends "[t]he Handbook and policies state that if" an employee's short-term disability request "is approved, an employee is provided a weekly benefit equal to 66.67% of the employee's weekly earnings up to a maximum of $3,000 per week for a maximum of 13 weeks." (PSGD ¶ 10.)
Plaintiff disputes Defendant's interpretation, claiming that "Presidio HR personnel told him that he would be paid the full amount of his Base Salary while he was on leave." (Id.) Plaintiff claims he was told that "Presidio would pay him 66.67% of his Base Salary, and the State of California would pay him short-term disability benefits on top of that up to 100% of his salary." (Id.) As a result, "when he went out on that leave, he expected . . . that he was going to get 100% of his Base Salary for the entirety of his leave" pursuant to the terms of the Agreement. (Id.)
An examination of the extrinsic evidence (i.e., the Handbook and policies) does not definitively resolve the ambiguity. The Handbook itself does not make any reference to a $3,000 weekly cap. (See generally Handbook.) Instead, it only states that "if the employee is approved, [short-term disability] will be paid through Presidio payroll at a rate of 67% of the employee's earnings for the prior 12 months." (Handbook § 3.3 (emphasis added).) Elsewhere, the Handbook states "that all employee medical leaves of absence and/or requests for [short-term disability] are handled through Presidio's third-party administrator, Guardian." (PSGD ¶ 8.) Guardian's short-term disability coverage information makes clear that Guardian's policy provides 66.67% of an employee's salary up to a maximum of $3,000 per week. (Cunningham Decl. Ex. 4.) Although Guardian was responsible for handling short-term disability leave requests, (PSGD ¶¶ 8, 9, 23, 31-33, 60-62, 64, 67, 74), the record is less clear as to Guardian's role in handling payment once the request had been approved. As a result, it is not clear from the Handbook and associated policies whether payment under the Guardian policy is the sole source of compensation for employees on short-term disability or whether Guardian's policy is in addition to the compensation that would "be paid through Presidio payroll." (Handbook § 3.3.)
Defendant's citation of the section of the Employee Benefits Guide entitled "Disability Benefits - Guardian" does not clarify the issue. (See PSGD ¶ 10.) This section states that short-term disability coverage was available at no cost and would provide Plaintiff a weekly benefit equivalent to "66 & 2/3%" of his weekly pay up to a maximum of $3,000. (Cunningham Decl. Ex. 2, at 17, ECF No. 21-3.) As mentioned above, this information appears to discuss benefits provided by Guardian, and thus may or may not apply to funds "paid through Presidio payroll." (Handbook § 3.3.) Further, the Court notes that coverage under the Guardian policy entitled Plaintiff to a weekly payment equivalent to 66.67 percent of his salary, (Cunningham Decl. Ex. 4), whereas the Handbook states employees receive 67 percent of their weekly salary "through Presidio payroll," (Handbook § 3.3). As a result, the Court cannot say whether Defendant's "regular payroll practices" entitled Plaintiff to one single payment from Guardian or whether it entitled him to two different payments while on short-term disability, one through Guardian and one "through Presidio payroll." (Id.) To be sure, the very minor difference in these rates could easily be chalked up to a rounding error in the Handbook, but such a conclusion must be left to the trier of fact. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge" when he or she "is ruling on a motion for summary judgment . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
Considering the evidence in the light most favorable to Plaintiff, there is a disputed issue of material fact as to how an "objective, reasonable third party," Osborn, 991 A.2d at 1159, would have interpreted the term "regular payroll practices." The Court declines to enter summary judgment given this conflict. See Essex Walnut Owner L.P. v. Aspen Specialty Ins. Co., 335 F. Supp. 3d 1146, 1150 (N.D. Cal. 2018) ("Contract interpretation, as a question of law, is often amenable to summary judgment, although summary judgment may be inappropriate in a contract case if there is a dispute over a material fact necessary to interpret the contract." (cleaned up)); Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013) ("If the nonmoving party presents a reasonable alternative reading of the contract, then a question of fact as to the meaning of the contract exists which can only be resolved at trial." (internal quotation marks omitted)).
None of Defendant's other arguments in support of its motion are sufficient to justify summary judgment. Defendant claims that Plaintiff accepted the short-term disability benefits, thereby fatally undermining his cause of action because "Plaintiff's consent to [these] payment[s] constitutes a waiver of any breach of contract claim." (Mot. 11.) "It is well settled that a party to a written contract may orally, or by implication from conduct, waive performance of a contract term or condition inserted in the contract for its benefit and that the waiver does not require a writing." In re Coinmint, LLC, 261 A.3d 867, 899 n.204 (Del. Ch. 2021) (internal quotation marks omitted). It is equally clear, however, that "[w]aivers of contractual rights are not lightly found, as a waiver must be unequivocal." Schillinger Genetics, Inc. v. Benson Hill Seeds, Inc., No. 2020-0260-MTZ, 2021 WL 320723, at *15 (Del. Ch. Feb. 1, 2021) (internal quotation marks omitted).
This argument falters for a number of reasons. First, a party's "[i]ntention lies at the foundation of the doctrine of waiver," rendering it "a matter of fact for the jury" and therefore inappropriate for summary judgment. Jones v. Savin, 97 A. 591, 592 (Del. Super. Ct. 1916) (internal quotation marks omitted); accord Weyerhaeuser Co. v. Domtar Corp., 204 F. Supp. 3d 731, 740 (D. Del. 2016), aff'd, 721 F. App'x 186 (3d Cir. 2018). Further, even if the matter were appropriate for resolution on summary judgment, "[w]aiver has been defined to be an implied consent by a failure to object." Savin, 97 A. at 592. Plaintiff claims he "sent a letter informing Presidio of its failure to pay [him his] full Base Salary " and "repeatedly objected to Presidio" that he was "getting paid less than [his] full Base Salary while [he] was on . . . leave." (Madick Decl. ¶ 27; see id. Ex. B.) Plaintiff's declaration that he repeatedly objected to the amount of money he was receiving while on short-term disability is sufficient to raise a triable issue of fact such that the Court could not find that he waived his breach of contract claim on summary judgment. See Weiler v. United States, 323 U.S. 606, 608, 65 S.Ct. 548, 89 L.Ed. 495 (1945) ("Triers of fact in our fact-finding tribunals are, with rare exceptions, free in the exercise of their honest judgment, to prefer the testimony of a single witness to that of many."); Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
Defendant also unpersuasively argues that Plaintiff failed "to timely terminate his employment pursuant to Section 4(c)," (Mot. 11), which is the section of the Agreement authorizing Plaintiff to end the Agreement and resign if there was a reduction in his Base Salary, (Agreement § 4(c)). Defendant states that "[d]espite Plaintiff's knowledge" that his "benefits would be equal to 66.67% of his weekly earnings up to a maximum of $3,000 per week," Plaintiff collected short-term disability "benefits for nearly two months before sending a Notice of Termination to Presidio for the alleged reduction in base salary." (Mot. 11 (emphasis removed).) As discussed above, there is a dispute as to whether Defendant's "regular payroll practices" meant Plaintiff would receive a reduction in his weekly take-home pay. (See Opp'n 15-16.) Further, nothing in Section 4(c) compels Plaintiff to terminate the agreement if there is a reduction in his Base Salary. (See Agreement § 4(c).) Plaintiff was within his rights to attempt less extreme measures to rectify the situation before resorting to the resignation procedures outlined in the Agreement. As a result, even if his continued employment was sufficient to raise the inference that he acquiesced to a reduction in his base salary, such an inference would not withstand scrutiny assuming, as the Court must, that Plaintiff objected to his rate of pay while on short-term disability.
For these reasons, the Court denies the motion as to the breach claim.
B. FEHA and CFRA Claims
In his Complaint, Plaintiff alleges four violations of FEHA within one cause of action. First, Plaintiff alleges that Defendant "failed to accommodate Madick's disabilities." (Compl. ¶ 31.) Second, Plaintiff claims that Defendant "failed to engage in the good-faith interactive process in response to his request for a reasonable accommodation." (Id. ¶ 32.) Third, Plaintiff alleges that Defendant "fired Madick because he is disabled." (Id. ¶ 33.) Fourth, Plaintiff summarily offers that Defendant retaliated against him in violation of FEHA, though this theory of the claim is not clearly pleaded. (See id. ¶¶ 30-34.) In a separate cause of action, Plaintiff also claims Defendant's conduct constituted discrimination and retaliation in violation of CFRA. (Id. ¶¶ 44-55.) Although Plaintiff nominally raises the issue of disability discrimination and retaliation under FEHA in his opposition, he only offers argument in support of his theories of Defendant's failure to engage in the interactive process and failure to accommodate Plaintiff's disability. (See Opp'n 18-21.) Plaintiff also fails to offer any response to Defendant's arguments concerning his CFRA claim. (See generally Opp'n.) As a result, Plaintiff's discrimination and retaliation claims under FEHA and his claim under CFRA have been abandoned. See Jenkins v. County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) ("Jenkins abandoned her other two claims by not raising them in opposition to the County's motion for summary judgment."); Moss v. Technicolor, Inc., CV-99-05601-WJR(MCX), 2001 WL 1472673, at *16 (C.D. Cal. May 4, 2001) ("Plaintiffs failed to oppose Defendants' various attacks on these claims. As such, Plaintiffs' [sic] failed to meet their burden on summary judgment of either affirmatively demonstrating that there is a genuine issue of material fact or that the law is in their favor. In other words, Plaintiffs have conceded this issue."), aff'd, 48 F. App'x 638 (9th Cir. 2002).
1. Failure to Accommodate
Under FEHA, an employer must "make reasonable accommodation for the known physical or mental disability" of an employee. Cal. Gov't Code § 12940(m)(1). To make out a failure to accommodate claim, a plaintiff must show "(i) the plaintiff has a disability under the FEHA; (ii) the plaintiff is qualified to perform the essential functions of the position; and (iii) the employer failed to reasonably accommodate the plaintiff's disability." Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 907 (E.D. Cal. 2017) (citing Lui v. City & County of San Francisco, 211 Cal. App. 4th 962, 971, 150 Cal.Rptr.3d 385 (2012)). As used in FEHA, a "reasonable accommodation" is "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 974, 83 Cal.Rptr.3d 190 (2008). The "plaintiff bears the initial burden to show" that a reasonable accommodation is available. Reese v. Barton Healthcare Sys., 693 F. Supp. 2d 1170, 1187 (E.D. Cal. 2010) (citing Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1046 (9th Cir. 1999)).
Defendant is entitled to summary judgment because Plaintiff has not offered sufficient evidence to establish his prima facie case. See Fritz Cos., Inc., 210 F.3d at 1106 (recognizing that summary judgment is appropriate when the moving party shows "that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial."). Specifically, Plaintiff has not offered satisfactory evidence that he was qualified to perform the essential functions of the position at the time of his termination. Plaintiff argues "that certain simple adjustments would have enabled him to return to work, including limiting his travel and allowing him to do meetings via telephone and videoconferencing, obtaining a comfortable ergonomic chair and computer set up, and allowing for him to take breaks throughout the work day." (Opp'n 20 (citing Madick Decl. ¶ 36).) However, it is undisputed that as of March 2023, Plaintiff had never been returned to work by his physicians. (PSGD ¶ 71.) "[G]iven the medical evidence presented, plaintiff's subjective opinion concerning his ability to work is facially insufficient to establish that he was qualified to return to work." Swonke v. Sprint Inc., 327 F. Supp. 2d 1128, 1134 (N.D. Cal. 2004) (internal quotation marks omitted). "To rule in favor of plaintiff on this point would be to hold that the employer should have returned plaintiff to work when the professional medical judgment was that he was . . . incapacitated." Id. at 1133.
Ultimately, when evaluating an FEHA claim on summary judgment, it is Plaintiff's "actual ability to work, and not her opinion about that ability, that matters." Markowitz v. UPS., Inc., No. SACV 15-1367 AG (DFMx), 2016 WL 3598728, at *5 (C.D. Cal. July 1, 2016), aff'd, 711 F. App'x 430 (9th Cir. 2018). "It comports with common sense that FEHA can't require an employer to permit an employee to perform a job function that the employee's physician has forbidden." Id. (internal quotation marks omitted). Although Plaintiff may have been able to submit competent medical evidence showing that he was qualified to work, the fact is that he did not. Because "a conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact," Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2007) (cleaned up), Defendant's motion for summary judgment on this issue is GRANTED.
2. Failure to Engage in an Interactive Process
Under FEHA, employers have an obligation "to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations" for "an employee or applicant with a known physical or mental disability or known medical condition." Cal. Gov't Code § 12940(n). "An employer's failure to engage in this process is a separate FEHA violation" apart from and in addition to an employer's failure to provide such an accommodation. Wilson v. County of Orange, 169 Cal. App. 4th 1185, 1193, 87 Cal.Rptr.3d 439 (2009). The obligation to engage in an interactive process may be triggered "when the employer itself recognizes the need for one," Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. 2015), and "[o]nce initiated, the employer has a continuous obligation to engage in the interactive process in good faith," Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 971, 181 Cal.Rptr.3d 553 (2014). At the same time, FEHA does not "impose upon the employer an obligation to engage in a process that was guaranteed to be futile." Swonke, 327 F. Supp. 2d at 1137. At bottom, "the trial court's ultimate obligation is to isolate the cause of the breakdown and then assign responsibility so that liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown." Nadaf-Rahrov, 166 Cal. App. 4th at 985, 83 Cal.Rptr.3d 190 (2008) (cleaned up).
At summary judgment, a plaintiff alleging an employer's failure to engage in the interactive process "must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred." Scotch v. Art Inst. of Cal., 173 Cal. App. 4th 986, 1018, 93 Cal.Rptr.3d 338 (2009). A plaintiff is not required to identify a reasonable accommodation during the interactive process itself, because "[a]n employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have." Id. (cleaned up). "[O]nce the parties have engaged in the litigation process," however, "the employee must be able to identify an available accommodation the interactive process should have produced." Id.
This claim fails for reasons similar to Plaintiff's claim for failure to accommodate his disability. Although Plaintiff argues certain accommodations would have allowed him to return to work, he provides no evidence that he was medically cleared to return to work under any conditions. Plaintiff has not identified a "reasonable accommodation," Scotch, 173 Cal. App. 4th at 1018, 93 Cal.Rptr.3d 338 (emphasis added), with sufficient evidentiary support given "FEHA can't require an employer to permit an employee to perform a job function that the employee's physician has forbidden," Markowitz, 2016 WL 3598728, at *5. Stated differently, although Plaintiff has identified a possible accommodation, he has failed to demonstrate that the proposed accommodation would have enabled him to perform the essential functions of his position. See Scotch, 173 Cal. App. 4th at 1010, 93 Cal.Rptr.3d 338.
Defendant has shown Plaintiff "does not have enough evidence of an essential element of [his] claim . . . to carry [his] ultimate burden of persuasion at trial." Fritz Cos., Inc., 210 F.3d at 1106. As a result, Defendant's motion to dismiss this theory of the claim is GRANTED.
C. FMLA
In his Complaint, Plaintiff alleges "Defendants and its managing agents unlawfully discriminated and retaliated against Madick—by firing him after he requested and took this leave—all because he took a leave that qualifies as a [sic] FMLA leave." (Compl. ¶ 63.) Although Plaintiff alleges that this is a form of retaliation, (id. ¶ 65), the Ninth Circuit has held that "[b]y their plain meaning, the anti-retaliation or anti-discrimination provisions" of the FMLA "do not cover visiting negative consequences on an employee simply because he has used FMLA leave." Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001).
Instead, such claims are "covered under [29 U.S.C.] § 2615(a)(1), the provision governing interference with the exercise of rights" guaranteed by the FMLA. Id. (cleaned up). As a result, the burden shifting framework McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) does not apply in cases like this one, where an employee alleges he was terminated for using FMLA leave. Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). "Plaintiff need only establish by a preponderance of the evidence that (1) he took FMLA-protected leave, (2) he suffered an adverse employment action, and (3) the adverse action was causally related to his FMLA leave." Foraker v. Apollo Grp., Inc., 427 F. Supp. 2d 936, 941 (D. Ariz. 2006), aff'd, 302 F. App'x 591 (9th Cir. 2008). Further, Plaintiff does not need to show his FMLA leave was the "but for" cause of his termination. A plaintiff can sustain a claim by showing nothing more than the "taking of FMLA-protected leave constituted a negative factor in the decision to terminate" him. Liu, 347 F.3d at 1136 (internal quotation marks omitted) (emphasis added).
There is no genuine dispute that Plaintiff has established the first and second elements, but the parties disagree as to whether Plaintiff's termination was causally related to his use of FMLA leave. Plaintiff argues there is a triable issue of material fact because "the temporal proximity" between his termination and his FMLA leave, Defendant's alleged breach of the Agreement, as well as Defendant's failure to engage in the interactive process give rise to the inference that Defendant considered the use of his FMLA leave as part of its decision. (Opp'n 22-24.)
Concerning "the temporal proximity" between his termination and his FMLA leave, Plaintiff argues that he was terminated on January 19, 2022, or just one month from the end of his FMLA leave. (Opp'n 21-22.) On that date, Plaintiff received a letter stating "Presidio's obligation under the Family Medical Leave Act has been fulfilled and" that Plaintiff's "former position [was] no longer available to [him]." (Lopez Letter.) The letter went on to say that if he was able to return to work in the future, Plaintiff was entitled to "apply for any available position for which [he was] qualified." (Id.) The letter also attached documents including: "(1) the Presidio Employee Exit Guide, (2) the Presidio Benefit Contact Information sheet, (3) Madick's signed Confidentiality Agreement," and "(4) a UPS shipping label for Madick to ship back to Presidio all Presidio items, including his company laptop." (Opp'n 22 (citing Lopez Letter).) Plaintiff states that the contents of this letter led him to believe that it "provided him notice that Presidio had fired him." (Id.)
According to Plaintiff, the "[p]roximity in time between taking FMLA leave and a termination" in this case " 'provides supporting evidence of a connection between the two events.' " (Id. (quoting Liu, 347 F.3d at 1137).) Although the Ninth Circuit has recognized that "close temporal proximity between" an employee's use of FMLA leave and his termination "may give rise to an inference of causal connection" under certain circumstances, Liu, 347 F.3d at 1137 (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998)), this inference is not necessarily conclusive, Hodgens, 144 F.3d at 170. Any temporal proximity between an employee's termination and his use of FMLA leave "must be viewed with regard to its factual setting to determine if a jury could reasonably draw that inference." Lohr v. CoreCivic of Tenn. LLC, No. CV-20-02301-PHX-MTL, 2022 WL 16745331, at *2 (D. Ariz. Nov. 7, 2022) (citing Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003)).
Defendant argues that "Plaintiff was not terminated until February 8, 2022," (Reply 10), which is the date Plaintiff qualified for LTD, (PSGD ¶ 67). The Court recognizes that the Lopez Letter is far from a model of clarity, but even drawing all inferences in favor of Plaintiff, the letter did not evidence Defendant's decision to terminate Plaintiff on January 19, 2022. The letter states that Plaintiff's employment would end if one of two conditions were satisfied: 1) Plaintiff was no longer on an approved leave of absence, or 2) Plaintiff was approved for long-term disability. (Lopez Letter.) Neither of these conditions had been satisfied at the time the letter was sent. The letter also states that certain employment benefits, such as Plaintiff's enrollment in the "Company's medical, dental and vision plan(s)" and his "participation in the Presidio 401K Plan," would "continue until" he was "terminated from the company as indicated above." (Lopez Letter.) Given Plaintiff has not shown that these benefits were discontinued earlier than February 8, 2022, there is no evidence to suggest that he was terminated any earlier than that date.
Ultimately, it is clear that the Lopez Letter was nothing more than a formal acknowledgement that Plaintiff's FMLA-protected leave had expired. The acknowledgement that Defendant had fulfilled its statutory obligation, without more, does not create an inference of causation. At bottom, any inference "must be viewed with regard to its factual setting to determine if a jury could reasonably draw that inference," Lohr, 2022 WL 16745331, at *2, and Plaintiff points to nothing in the record tying this letter to his termination other than his own self-serving testimony.
Plaintiffs other arguments—that Defendant's breach of the Agreement and failure to engage in the interactive process give rise to the inference that Defendant considered the use of Plaintiff's FMLA leave in making the termination decision—also fail to show there is a triable issue of fact. Defendant states that "[o]n February 8, 2022, understanding that Plaintiff required indefinite leave due to his continued inability to work, Presidio processed Plaintiff's termination based on its policy and practice." (PSGD ¶ 47.) An employee is only eligible for LTD if Guardian has determined that they are unable to perform any work at all for an indefinite period of time. (Id. ¶ 58.) "[P]ursuant to this policy, an employee's employment with Presidio ends once they are approved by Guardian for LTD benefits." (Id.) Plaintiff disputes these assertions by stating, without any citation to the record or supporting evidence, that "[a]n employee who is approved for LTD may be able to work if provided an accommodation." (Id.) "[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Liberty Lobby, Inc., 477 U.S. at 257, 106 S.Ct. 2505. Mere inferences that his use of FMLA leave might have been considered are not sufficient to sustain a claim when the evidence shows he was terminated pursuant to Defendant's regular practices applicable to all employees placed on LTD. As a result, Plaintiff's argument that "even assuming arguendo that Madick was fired on February 8, 2022, and not January 19, 2022, the temporal proximity of his FMLA leave ending and his termination date still suggests that his taking an FMLA was taken into account when Presidio decided to fire him" is unavailing. (Opp'n 22 n.2.)
Even if the Court were to interpret Plaintiff's objection as claiming that he personally could have continued working if he had been provided an accommodation, (see Madick Decl. ¶ 36), it would still not be enough to defeat summary judgment. First, as discussed above, Plaintiff's contention that he could have worked if he had been provided a reasonable accommodation is similarly unsupported by any evidence beyond his own say so. Second, the objection would still not advance Plaintiff's argument that Defendant's other conduct is sufficient to give rise to an inference strong enough to overcome summary judgment. Even if Guardian erred in placing him on LTD, the undisputed facts would still show that it was Defendant's regular policy to terminate employees that Guardian had determined were unable to work. As a result, any inference raised by Defendant's other conduct would need to be viewed in light of the fact that Plaintiff would still have been terminated upon qualifying for LTD whether or not he had taken FMLA leave.
Accordingly, Plaintiff has not shown there is a disputed issue of material fact as to causation, and Defendant's motion for summary judgment on this claim is GRANTED.
D. Wrongful Termination in Violation of Public Policy
To support a claim for wrongful discharge in violation of public policy, a plaintiff must show "the policy was (1) delineated in either constitutional or statutory provisions; (2) public in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental." Phillips v. St. Mary Reg'l Med. Ctr., 96 Cal. App. 4th 218, 226, 116 Cal.Rptr.2d 770 (2002) (internal quotation marks omitted). Because Plaintiff has failed to make out a violation of any statutory provision, he has similarly failed to show that he was wrongfully discharged in violation of public policy. Accordingly, Defendant's motion for summary judgment is GRANTED with respect to this claim.
E. Punitive Damages
"In an action for the breach of an obligation not arising from contract," punitive damages are recoverable "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." Cal. Civ. Code § 3294. Where the defendant is a corporation, "the evidence must demonstrate an officer, director or managing agent of Defendant committed, authorized or ratified an act of malice, oppression or fraud to create a genuine issue of material fact on punitive damages." Yeager v. Corr. Corp. of Am., 944 F. Supp. 2d 913, 931 (E.D. Cal. 2013); accord Cal. Civ. Code § 3294.
Because Plaintiff's only surviving claim arises from contract, Defendant is entitled to summary judgment as to his claim for punitive damages. Even if Plaintiff's non-contract claims survived, Defendant would still be entitled to summary judgment on this issue. In his opposition, Plaintiff alleges that actions of Defendant's "President and COO" are sufficient to "support punitive damages," but he offers no evidence to back up this assertion. (Opp'n 25.) Instead, Plaintiff's argues that "Presidio refused to produce Dave Hart" or a person most knowledgeable on certain subjects for a deposition pursuant to Rule 30(b)(6) and that "[t]he Court should not reward Presidio for such actions and discovery gamesmanship. (Id.) As an initial matter, the time to raise discovery disputes has long passed. (See Order Re: Jury Trial § I(B)(1) ("The cut-off date for discovery . . . is the date by which all discovery, including all hearings on any related motions, must be completed.").) Plaintiff had an opportunity to compel the deposition of Mr. Hart or a Rule 30(b)(6) deponent, but he failed to raise this issue with the Magistrate Judge. Further, even acknowledging that Mr. Hart or the person most knowledgeable could have provided relevant deposition testimony, without at least some evidence "demonstrat[ing] an officer, director or managing agent of Defendant committed, authorized or ratified an act of malice, oppression or fraud," Yeager, 944 F. Supp. 2d at 931, Plaintiff's unadorned speculation is not sufficient to defeat a motion for summary judgment, Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) ("[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.").
For the reasons stated above, Defendant's motion for summary judgment as to Plaintiff's request for punitive damages is GRANTED.
IV. CONCLUSION
Defendant's motion is GRANTED in part and DENIED in part. Defendant's motion for summary judgment is GRANTED as to Plaintiff's claims for violations of FEHA, violations of CFRA, interference with his FMLA rights, and wrongful termination in violation of public policy. Defendant's motion is GRANTED as to Plaintiff's request for punitive damages.
Defendant's motion is DENIED as to Plaintiff's claim for breach of contract. But Plaintiff may proceed only on a theory that Defendant failed to pay him all amounts due under the Agreement.