Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. TC021874 William P. Barry, Judge.
Irving Meyer for Plaintiff and Appellant.
Baker & Hostetler, Ronald J. Klepetar, Margaret Rosenthal and Nancy Inesta for Defendants and Respondents.
CROSKEY, J.
In this suit brought primarily under California’s Fair Employment and Housing Act (Govt. Code, § 12940 et seq., the FEHA), plaintiff Michael Porter (plaintiff) appeals from a summary judgment entered in favor of defendant Ralphs Grocery Company (defendant).
Unless otherwise indicated, all references herein to statutes are to the Government Code.
Plaintiff asserts defendant’s termination of his employment was based on defendant’s dissatisfaction with his needing medical leaves of absence and on his position that he should be paid for all hours worked on defendant’s behalf. The trial court adjudicated against plaintiff all ten of his causes of action and entered summary judgment in favor of defendant. Our review of the appellate record, however, convinces us that triable issues of fact exist as to some of plaintiff’s causes of action and therefore the judgment must be reversed and the cause remanded for further proceedings.
Plaintiff originally alleged twelve causes of action, but later dismissed two of them. Only ten causes of action were adjudicated in the trial court proceedings reviewed in this appeal. (See fn. 5, post.)
Specifically, we find that plaintiff is entitled to a trial on his causes of action for disability discrimination and wrongful termination in violation of public policy, which are causes of action based on plaintiff’s medical condition and medical leaves of absence. Trial is also warranted on plaintiff’s causes of action for failure to pay wages mandated by statute, failure to provide adequate meal and rest periods or alternatively wage compensation, failure to pay all money due plaintiff immediately upon termination of his employment, and wrongful termination of his employment in violation of public policy regarding his claim for pay for time worked off the clock As discussed in footnote 8, post, plaintiff’s other causes of action have no factual or legal basis, or plaintiff has waived our review of them by failing to address them in his appellate briefs, and thus summary adjudication in favor of defendant on those causes of action was proper. They are the causes of action for retaliation, failure to accommodate a disability, failure to engage in an interactive process, intentional infliction of emotional distress, negligence per se, violation of Business and Professions Code section 17200.
BACKGROUND OF THE CASE
1. Evidence Presented by the Parties
As we review the trial court’s grant of summary judgment de novo (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474), we look afresh at the evidentiary record, including the parties’ respective separate statements. Our review of that evidentiary record serves as the basis for our factual recitation.
a. Evidence Concerning Plaintiff’s Disability Claims and Termination
On December 23, 2002, defendant hired plaintiff to work as a porter, and for the last three years of his employment with defendant, plaintiff worked at defendant’s store No. 294 in that position. A porter is a janitor. Plaintiff worked from midnight to 9:00 a.m., five days a week. Another porter, Ignacio Camacho, aka Nacho, worked that same shift with plaintiff three days a week. On the other two days, plaintiff was the only porter working that shift.
Plaintiff’s primary duties were to clean the store’s restrooms and maintain the store’s floor by cleaning, waxing and buffing it. The buffing machine moves on its own if the operator knows how to handle it, and the operator guides it along. The scrubber will also move along on its own and the operator guides it. The equipment was easy for plaintiff to operate because of how long he had been using it.
Defendant’s employees are required to comply with defendant’s rules. Employees who will be late to work must provide advance notice to the store where they work. Also, as noted in footnote 3, rule 10(n) provides that it is grounds for immediate dismissal for an employee to leave work before the end of his or her shift without the permission of the person-in-charge.
Bruce Wright stated in his declaration that this dismissal policy for rule 10(n) “is important because it permits department heads and Store Directors to maintain efficient store operations, permits them to be aware of the location of their employees, and permits them to schedule tasks to be completed in anticipation of shift changes.”
In 2004 plaintiff developed a fistula on his lower back that occasionally causes him extreme pain. He described it as a wound inside his tailbone, and stated the last time his doctor examined him she said the fistula is 10 inches long and is not healing. When the condition flares up it hurts to walk, stand, lean over, bend down, and lift things. Plaintiff stated that although when the condition flares up it does not “prevent” him from doing his job, he is nevertheless in “a lot of pain” and he “can’t walk [and] can’t bend.” He stated that because of the condition he does not skate and swim any more.
From 2004 through 2007 defendant granted plaintiff’s three requests for medical and family leave for his fistula disability and then returned him to his job after the leaves. The leaves ranged from six weeks to over six months. Defendant also assisted plaintiff to extend his disability leave. When he returned to work on November 5, 2007 from a medical leave plaintiff had no restrictions placed on his work by his doctor.
Tony Khoury became the store director for store 294 on August 20, 2007. Soon thereafter Khoury told plaintiff that if plaintiff did not “straighten up” his attendance, Khoury would terminate plaintiff’s employment, and Khoury bragged about firing the entire night crew at a store he previously managed. After that Khoury made no further remarks about plaintiff’s attendance and never disciplined plaintiff for attendance. Plaintiff did not report Khoury’s remark to the personnel department. Because plaintiff worked the late night shift plaintiff had little personal interaction with Khoury.
Plaintiff was scheduled to work his midnight to 9:00 a.m. shift on February 3, 2008. He arrived at work after 1:30 a.m. and did not call ahead to give notice he would be late. He only went to work that night because he thought he was going to be the only porter on duty; however when he arrived at work Nacho was there. If he had known that Nacho was going to be there he would not have gone to work and he would have called in.
When he arrived at work Nacho told him that he (Nacho) had been told by Tony Khoury to send plaintiff back home if plaintiff had not shaved for the shift because twice plaintiff had come to work unshaved after Khoury had set an expectation that his shift would come to work shaved. Because Nacho was there working and because there were no special assignments to do, plaintiff decided that since he was not feeling well he should go back home. Because it was Nacho to whom Tony Khoury had given permission to send plaintiff home, plaintiff told Nacho he was sick and wanted to leave. Another reason plaintiff left early that night was because he had brought only two adult diaper pads with him to work because he had “run out of supplies.” The store where plaintiff worked did not carry the diapers. They had to be purchased from a hospital supply store. Nevertheless, plaintiff was prepared to work the whole shift with only two diaper pads if Nacho had not been there.
Plaintiff told Derrick Pierre, the actual person-in-charge that night, that he was going home. Because plaintiff did not tell Pierre why he was leaving, Pierre tried to get plaintiff to stay and work his shift. When he saw that plaintiff would not stay Pierre unlocked the door so that plaintiff could leave. That was around 2:00 a.m.
Because he left the store before his shift ended plaintiff was suspended pending an investigation. On February 3, 2008, the day of his suspension, plaintiff saw a doctor who certified him for state disability. In his investigation of plaintiff’s violation of defendant’s rule regarding leaving his shift early Bruce Wright obtained statements from Derrick Pierre, Jay Connor, and Nacho. Wright also interviewed plaintiff at a February 8, 2008 grievance meeting. Plaintiff’s union representative was at the grievance meeting.
Wright was not satisfied by plaintiff’s explanation of why he left early. Despite plaintiff’s statement to him that if Nacho had not been at the store he (plaintiff) would have stayed and worked the shift, Wright concluded that plaintiff “couldn’t have intended to stay and done his work if he didn’t bring enough diapers to work the nine hours.” Wright determined plaintiff had violated defendant’s rules, including rule 10(n) and Wright recommended that plaintiff be immediately dismissed for walking off the job. Plaintiff’s employment was terminated the day of the grievance meeting. During his employment with defendant, plaintiff had previously had two other “write-ups.” One was for a time in 2003 when he failed to come to work and failed to call in and say he would not be at work.
b. Evidence Regarding Plaintiff’s Claim of Unpaid Wages
Regarding plaintiff’s claim that he was required to work off the clock, defendant presented evidence regarding policies it has regarding time keeping, meal and rest breaks, and working off the clock. Missing from the evidence are statements by Khoury, Connor or Pierre regarding to what degree these policies were actually followed at store 294.
Defendant’s policy is that hourly employees whose shift is longer than five hours are required to take a meal break “ranging from 30 minutes to an hour in compliance with California law but employees who work between five and six hours can waive meal breaks. Defendant’s policy permits hourly employees to take 10 minute rest breaks for each four hours worked. Defendant’s policy is to schedule the employee’s meal breaks for them and to let the employees schedule their own rest breaks. Defendant’s policy forbids hourly employees from working off the clock and so the hourly employees must clock in/key in/swipe their badges on defendant’s electronic timekeeping system, known as KRONOS. The employees do this at the beginning of their shift, at the beginning of their meal period, at the end of their meal period, and at the end of their shift. Defendant’s policy is that employees who work off the clock are disciplined and the discipline can include suspension and termination.
Additionally, defendant’s policy is that hourly employees are responsible for ensuring that records of their work time are accurate, and they are to do this by reviewing and initialing their previous week’s duplicate time card report, which is provided to them along with their pay check. Plaintiff testified he did not know of anything called a duplicate time card report. However, he stated that he would sign a piece of paper that came to him with his check, but he would not review the paper. Rather, he signed it for the purpose of showing that he received his check. When plaintiff received his paychecks he reviewed them to see if they were correct. He never brought to a manager’s attention that something in his paychecks was not correct.
Plaintiff was aware that it was defendant’s policy that he should only work on the clock. However, three times a week plaintiff worked overtime at the end of his day but was not paid overtime. He did not record the overtime. Rather, after he clocked out he continued to work. Although no one specifically told him to work off the clock he did so because “the job wasn’t finished and I had to do it or I was going to get a write-up.” He told Jay Connor, Tony Khoury and Derrick Pierre about working off the clock but none of them told him to only work on the clock, and Connor turned his head like he did not hear plaintiff. The off-the-clock overtime would last an hour or two. Plaintiff did not keep records of the amount of off the clock time he worked but he knew it was “a lot of overtime off the clock.” He did not complain to personnel about it. He worked the over time because there was too much work. “One man can’t do all the work and sometimes two men can’t do all that work in an eight-hour period.”
This off-the-clock over time work began when Khoury began his position as store director. The person who was store director before Khoury had that job “didn’t get on [plaintiff’s] back about overtime, ” but Khoury told him there was to be no overtime. Khoury would tell him that whenever plaintiff’s work was not finished at the end of the shift and that occurred perhaps twice a week. However on some occasions Khoury would let him stay on the clock for the overtime work.
Khoury, Connor and Pierre were all aware that plaintiff was working overtime off the clock. Khoury knew plaintiff was working off the clock because he knew that plaintiff’s shift ended at 9:00 a.m. and when plaintiff was working after 9:00 and Khoury had not approved overtime for plaintiff, then Khoury would have to know that plaintiff was working off the clock. Also, Connor and Pierre were in the store at 11:00 a.m. When plaintiff would tell Khoury he would not do work off the clock and he was going home, Khoury and Nacho would not say anything and they had no choice but to let him leave after his shift, but their attitude changed in that they would give plaintiff the “cold shoulder[].” Also, plaintiff’s hours would be cut and he would not get his full 40 hours a week. Sometimes he would get as little as 24 hours a week. Having his hours cut happened each time Khoury was upset with plaintiff. Calling in sick would also result in having his hours cut. There were times before Khoury came to work at the store that plaintiff would not have 40 hours a week but that was because there were three porters at that time. On the occasions when plaintiff would tell Khoury he was not able to take his rest breaks, Khoury would not say anything. He would ignore plaintiff. Also, two or three times a week plaintiff was denied a meal break.
Bruce Wright stated that plaintiff’s pay records show that from August 2007 until February 3, 2008, plaintiff recorded taking a meal break every day with only two exceptions, and during that same period he worked over 33 hours every week in which he was not sick or on leave. Wright also stated plaintiff’s payroll records show that he recorded time in excess of eight hours at least twice a week on average, however it is not clear from Wright’s declaration what the time frame is for that overtime-whether it was worked before or after Khoury became store director, or both. In any event, that evidence does not conflict with plaintiff’s testimony that sometimes Khoury would let him work overtime on the clock and that three times a week he worked overtime without pay.
2. Plaintiff’s Causes of Action
In his complaint plaintiff alleged causes of action for (1) violation of the FEHA by discrimination based on his medical disability; (2) wrongful termination of his employment in violation of public policy regarding his disability and his claim for pay for time worked off the clock; (3) retaliation for his having exercised his right to take time off under the federal Family and Medical Leave Act and California’s Family Rights Act, and his having requested that he not be made to work off the clock; (4) failure to accommodate his disability; (5) failure to engage in the interactive process regarding an accommodation for his disability; (6) intentional infliction of emotional distress; (7) negligence per se by failing to abide by the FEHA; (8) failure to pay wages mandated by statute; (9) failure to provide adequate meal and rest periods, or alternatively wage compensation; and (10) unfair competition by disability discrimination, and by wrongful termination in retaliation for his exercising his rights to medical leave and proper payment.
Plaintiff initially named Tony Khoury as a defendant but later dismissed him from the suit. Plaintiff also dismissed his causes of action against defendant for racial discrimination (plaintiff is an African American), and for hostile work environment in violation of the FEHA (which was based on plaintiff’s disability and his race).
Defendant answered plaintiff’s complaint with a general denial and affirmative defenses and thereafter filed a motion for summary judgment or alternatively summary adjudication.
CONTENTIONS ON APPEAL
Plaintiff contends summary judgment was improperly granted because he presented evidence demonstrating that defendant’s proffered reason for firing plaintiff (violation of rule 10(n)) is just a pretext for terminating plaintiff and the real reason for his termination is his medical disability. Plaintiff further contends there is evidence that defendant knew he worked off the clock so that he could accomplish the tasks of his job that could not be completed during his normal shift.
DISCUSSION
1. Standard of Review
We review the order granting defendant’s motion for summary judgment on a de novo basis. (Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at p. 474.) In doing so, we examine the same evidence and apply the same rules as the trial court was required to do in deciding the motion.
When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiff’s causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If a defendant’s presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action or on a defense, the burden shifts to the plaintiff to present evidence showing that contrary to the defendant’s presentation, a triable issue of material fact actually exists as to those elements or the defense. (§ 437c, subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) Thus, section 437c, subdivision (c), states that summary judgment is properly granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Because a summary judgment denies the adverse party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865 866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.
2. Plaintiff’s Disability Discrimination and Violation of Public Policy Claims
Since it is often difficult to produce direct evidence of an employer’s discriminatory intent, certain rules regarding the allocation of the burdens and order of presentation of proof have developed in order to achieve a fair determination of the question whether intentional discrimination motivated an employer’s actions. (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254, fn. 8.)
At trial, the plaintiff must present a prima facie case of discrimination: he was a member of a protected class; he was qualified for the position he sought or he was performing competently in the position he held; he suffered an adverse employment action (for example, he was terminated, demoted, or denied employment); and there is evidence that suggests the employer’s motive for the adverse employment action was discriminatory. The plaintiff must present evidence of actions taken by the employer from which the trier of fact can infer, if the actions are not explained by the employer, that it is more likely than not that the employer took the actions based on a prohibited discriminatory criterion. If the plaintiff establishes a prima facie case of discrimination, a rebuttable presumption of discrimination arises and the burden shifts to the employer to rebut the presumption with evidence that its action was taken for a legitimate, nondiscriminatory reason, and if the employer does that, the presumption of discrimination disappears, and the plaintiff’s task is to offer evidence that the justification presented by the employer is a pretext for discrimination or additional evidence of discriminatory motive. The burden of persuasion on the issue of discrimination remains with the plaintiff. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356.)
In Hersant v. Department of Social Services (1977) 57 Cal.App.4th 997, 1003 1005, the court stated that in employer-initiated summary judgment motions, an employer’s presentation of evidence showing a nondiscriminatory reason for an adverse employment action, coupled with the employee’s presentation of a prima facie case of discrimination, will not result in the need for a trial on the issue of discrimination. Rather, the employee must present evidence to rebut the employer’s claim of nondiscriminatory motivation, or the employer will prevail on its motion. “[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Id. at pp. 1004 1005.) The employee must do more than raise an issue whether the employer’s action was unfair, unsound, wrong or mistaken, because the overriding issue is whether discriminatory animus motivated the employer. (Id. at p. 1005.) “ ‘[T]he [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence, ” [citation], and hence infer “that the employer did not act for... [the asserted] non-discriminatory reasons.” [Citations.]’ [Citations.]” (Ibid.)
In the instant case, there is no evidence that plaintiff was an employee who had a history of unexcused absences, or even frequent excused absences. Yet, there is evidence that after Tony Khoury came to work at store 294 as store director he told plaintiff to straighten up his attendance or he would terminate plaintiff’s employment, and Khoury bragged about how he had fired an entire night crew at another store. This occurred after plaintiff returned to work from a medical leave of absence in early November 2007, approximately ten weeks after Khoury arrived. In contrast, in the three years prior to Khoury’s arrival, plaintiff’s medical need for the time away from his job was taken in stride by management. Indeed plaintiff was assisted by management in extending his disability leave, and he was always returned to his position of porter. Additionally, on the day plaintiff was suspended for leaving his shift early he saw a doctor who certified him for state disability and a few days later there was a grievance meeting and plaintiff was fired.
Given that there is no evidence that plaintiff had a record of unwarranted or excessive days of absence, and given that Khoury’s warning and bragging to plaintiff came close in time to plaintiff’s return to work from a medical leave of absence, we have no reason to view Khoury’s remarks as merely unimportant “stray” remarks. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809-810.)
At his deposition, Wright stated that at the grievance hearing on February 8, 2008, “while [plaintiff] was explaining to [Wright] why he left [the store early on February 3, 2008], [plaintiff] indicated that he had a medical problem, that he had an operation and was having some issues that he had to wear diapers for, ... ” (Italics added.) There is no indication whether this operation is one that plaintiff had a few days after he was suspended on February 3, 2008, or is an operation he had, for example, during one of his medical leaves prior to 2008.
As for defendant’s stated reason for terminating plaintiff, there is evidence from which a trier of fact could reasonably conclude that terminating plaintiff on the basis of his having left early on February 3, 2008 is a pretext. Wright stated in his declaration that a reason for the rule against leaving one’s shift early without permission of the person in charge has to do with management not being able to find employees and direct their work. Here, both Nacho and Pierre knew that plaintiff had left the store early. Regarding the need to obtain permission from the person-in-charge in order to leave early, while that requirement is as a general rule reasonable since it is management that needs to know where the employees are, in this case Pierre did know that plaintiff was leaving early, and plaintiff stated at his deposition that since Khoury had told Nacho to send plaintiff home if he came to work unshaven, it was Nacho from whom plaintiff sought permission to go home because he was not feeling well. Similarly, although there is evidence that defendant’s policy is to schedule and post the time for its hourly employee’s meal breaks for each day, there is also evidence that Nacho was the person who told plaintiff when to take his meals. In short, this was not a situation where management was, or could be, looking for an employee who had left early, nor was it a situation where an employee left early because he felt there was no more work to do. Further, there is evidence that although he did not feel well enough to come to work, plaintiff came to the job anyway, albeit late, because he believed there would not be any porter there if he did not show up and when he realized that the porter position was covered and there were no special assignments, he left because he was not feeling well and he had only two diapers to carry him through the shift. In other words, there is evidence plaintiff went out of his way for defendant when he could have simply called in sick.
The whole of these facts-defendant firing plaintiff after Khoury expressed distaste for plaintiff’s absences, which appear to be his medical leaves of absence; defendant firing plaintiff even though both Nacho and Pierre knew that plaintiff had left the store and thus they were not looking for him, and Nacho, if not Pierre, knew he left because he was ill; defendant firing plaintiff after plaintiff put himself out by coming to work even though he was ill because he thought Nacho would not be there to do the porter work “might strike a trier of fact as being rather suspicious.” (Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1154.)
In our view, the whole of this evidence is sufficient to warrant denial of summary adjudication on the causes of action for disability discrimination and wrongful termination in violation of public policy, and thus sufficient to warrant denial of a summary judgment. This case must be sent back to the trial court to have the trier of fact determine whether defendant engaged in conduct violative of the FEHA when it terminated plaintiff’s employment.
3. Plaintiff’s Causes of Action Alleging Failure to Pay Proper Wages
Plaintiff’s complaint alleges that defendant required him to work overtime off the clock, and by doing this defendant both denied plaintiff proper wages and made it difficult for plaintiff to calculate the overtime pay due him. Plaintiff also alleged that defendant failed to afford meal periods of at least one-half hour in which he was relieved of all duties, and that he regularly worked without taking the 10 minute rest breaks due him. Plaintiff alleged violation of Labor Code sections 1174, 226.7, and 512. He also alleged violation of Labor Code sections 201 and 203 for failure to pay all sums due plaintiff immediately upon termination of his employment. Additionally, he alleged defendant retaliated against him for his having requested that he not have to work off the books.
As noted above, there is evidence that defendant’s policy is to schedule and post the time for its hourly employee’s meal breaks for each day, and its policy requires full time employees to take meal breaks, permits them to take rest breaks, and forbids them to work off the clock. However there was evidence that (1) Nacho was the person who told plaintiff when to take his meal breaks and rest breaks, (2) plaintiff clocked out at the end of his shift but continued to work at his job, and (3) plaintiff was sometimes denied meal and rest breaks. Also as noted above, although defendant presented evidence regarding its policies, conspicuously missing from the evidence are statements by Khoury, Connor or Pierre regarding to what degree these policies were actually followed at store 294.
Although defendant asserted its records indicate that with only two exceptions, plaintiff recorded taking a meal break every day from August 2007 to February 3, 2008, that does not necessarily answer plaintiff’s allegation that defendant failed to afford meal periods of at least one-half hour in which he was relieved of all duties. Also, although there is evidence that during that same time period the records show plaintiff recorded time in excess of eight hours at least twice a week on average, and although plaintiff admits that there were occasions when Khoury allowed him to work overtime, plaintiff also stated that three times a week at the end of his shift he clocked out but continued to work because even though no one told him to continue working he knew he would be written up if he did not finish his work, and he worked off the clock because there was too much work to finish in his regular shift. Also, there is no evidence from defendant regarding the period prior to August 2007 when Khoury became the store director.
Additionally, there is evidence that (1) Khoury, Pierre and Connor ignored plaintiff when he talked about working off the clock, (2) they knew he was working overtime because they would see him working past the end of his shift, (3) plaintiff’s working off the clock began when Khoury took over the store, (4) the person who was store director prior to Khoury did not object to plaintiff working overtime on the clock, and (5) when plaintiff would tell Khoury he would not work off the clock and he was going home Khoury and Nacho would not say anything and they had no choice but to let him leave after his shift, but their attitude changed in that they would give plaintiff the “cold shoulder[], ” and plaintiff’s hours would be cut and he would not get his full 40 hours a week. Moreover, the fact that plaintiff reviewed his paychecks to determine if they were correct and never informed management that they were not correct is not necessarily inconsistent with plaintiff’s assertion that he worked off the clock. There is evidence that complaining about off-the-clock work was not helpful to plaintiff. Thus a “correct” paycheck can, but not necessarily must, be viewed as one that does not reflect all overtime work and all work performed during meal and rest breaks but does reflect all other work time-that is, reflects all work time for which Khoury was willing to have plaintiff receive compensation.
Our Supreme Court has said that when an employee continues to work at the end of his shift even when not requested or required to do so, and the employer knows or has reason to know about such continuing work, then the time is considered working time and it is the duty of management to see that the post-shift work is not performed if it does not want the employee to work past his shift. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, interpreting a provision in the California Code of Regulations.) The evidence in the record is sufficient to warrant denying defendant summary adjudication on these Labor Code based causes of action.
Plaintiff’s remaining causes of action need little discussion here. Plaintiff argues that his causes of action for failure to accommodate and failure to engage in an interactive process are based on (1) the medical condition that defendant knew plaintiff has, (2) his need to leave work early on February 3, 2008 because he was in pain, and (3) his need for surgery. However, there is no indication that he told anyone when he left the store early that he was going to have surgery, or even that he was going to the doctor. He simply told Nacho he was not feeling well, and he only told Pierre he was going home. Subdivisions (m) and (n) of section 12940 make it clear that the need for an employer to engage in a timely, good faith interactive process to determine a reasonable accommodation for an employee begins with a request for such an accommodation.
DISPOSITION
The summary judgment from which plaintiff has appealed is reversed and the cause is remanded for further proceedings consistent with the views expressed herein. Costs on appeal to plaintiff.
We Concur: KLEIN, P. J., KITCHING, J.
The evidentiary focus of the parties’ summary judgment papers was plaintiff’s broad claims that defendant discriminated against him on the basis of his medical disability and defendant required him to work off the clock. The sources of the evidence the parties submitted to the trial court are plaintiff’s deposition, the deposition of Bruce Wright who is one of defendant’s employees, and Mr. Wright’s declaration.
According to Wright’s declaration he is defendant’s senior labor relations representative. One of his primary duties is to interpret provisions in collective bargaining agreements defendant has with organized labor and he conducts grievance meetings and attends arbitrations under such agreements. He makes recommendations to defendant’s store directors and supervisors regarding discipline of employees and the recommendations are based on his understanding of those agreements, defendant’s policies, and defendant’s Rules and Regulations (the rules).
A rule at issue in this case is rule 10(n). Rule 10 begins with the advisement: “None of the following will be tolerated, and will be considered sufficient cause for immediate discharge.” Part (n) of rule 10 states: “Leaving your work location before the end of your assigned shift without permission of the person-in-charge.” Regarding rule 10(n), Wright stated in his declaration that “[t]he labor relations department has recommended termination of over 300 employees in the last five years for leaving a work location prior to the end of an assigned shift without permission of the person in-charge.” Although Wright also stated that it is defendant’s policy to post a copy of the rules in employee break rooms, he did not state that with respect to defendant’s store at which plaintiff worked a copy of the rules was posted there. Nevertheless it appears that plaintiff was familiar with rule 10(n) when he worked at the store.
Jay Connor, who is the assistant store director, and Derrick Pierre, who is the assistant manager of merchandising were each, from time to time, the person-in-charge of plaintiff’s shift. On February 3, 2008, the day in question in this case, it was Derrick Pierre who was the person-in-charge.
Regarding his cause of action for intentional infliction of emotional distress, plaintiff based that claim on his allegations that he was fired because of his disability and because he requested that he not have to work off the clock. Usually an employee is not entitled to claim a separate cause of action for infliction of emotional distress because injuries suffered by the employee, including emotional distress, come within the exclusivity provisions of workers’ compensation law. However when, as here, a plaintiff has alleged causes of action for wrongful termination in violation of an express statute or wrongful termination in violation of public policy, his emotional distress damage claims are a component of compensatory damages in those causes of action. (Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, 577.)
Regarding the cause of action for negligence per se, the trial court ruled that cause of action is preempted by the California Workers’ Compensation Act. Plaintiff has not addressed this ruling in his appellate briefs and so we find that he has waived the issue.
The same is true for plaintiff’s claim that defendant violated Business and Professions Code section 17200’s prohibition against unfair competition and retaliation. Plaintiff has waived those causes of action by failing to address them in his appellate briefs.