Robin Lambert v. National Railroad Passenger Corporation et al

Filing 52

ORDER RE MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT 22 by Judge Dean D. Pregerson: Plaintiffs Third and Seventh Causes of Action are dismissed.Defendant Pitts is dismissed from the case. Defendant Amtraks motion for summary judgment is DENIED as to the remaining Causes of Action. (lc). Modified on 4/30/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBIN LAMBERT,

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Plaintiff,

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v.
NATIONAL RAILROAD PASSENGER
CORPORATION dba AMTRAK, a
Company doing business in
California form unknown;
DIANE PITTS, an individual,
Defendants.
___________________________

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Case No. CV 13-08316 DDP (MANx)
ORDER RE MOTION FOR SUMMARY
JUDGMENT OR PARTIAL SUMMARY
JUDGMENT
[Dkt. No. 22]

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Presently before the Court is Defendants’ Motion for Summary

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Judgment or, In the Alternative, Partial Summary Judgment.

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No. 22.)

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submissions, the Court adopts the following order.

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I.

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(Dkt.

Having heard oral arguments and considered the parties’

BACKGROUND
Plaintiff was employed by Defendant Amtrak as a customer

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service telephone operator for approximately sixteen years, from

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September 6, 1996 to June 21, 2012, when she was involuntarily

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terminated.

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was occasionally disciplined for violating Amtrak’s policies

(Compl. ¶¶ 8, 15.)

During her employment, Plaintiff

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regarding attendance, signing on and off the phone system, and

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taking breaks without authorization from a supervisor.

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23-2 at 170-269 (showing at least 17 disciplinary actions between

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1998 and 2010).)

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(E.g., Dkt.

Plaintiff alleges that starting in 2011, she suffered heart

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palpitations, chest pains, and shortness of breath, possibly as a

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result of an anxiety disorder.

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17, 2011, and November 22, 2011, Plaintiff presented Amtrak with

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(1) a doctor’s note stating that she should be excused for certain

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absences for medical reasons; (2) a doctor’s note stating that she

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should be “allowed to go outside periodically to get some fresh air

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while at work”; and (3) a request for reasonable accommodations

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stating that she sometimes lost the ability to breathe while at

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work and requesting “intermittent time off phone” and permission to

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“stand-up and/or go outside to get air.”

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4, 6, 7.)

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because “3 days does not qualify for a medical.”

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Her request for accommodations was forwarded to an “ADA [Americans

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with Disabilities Act] panel” for evaluation.

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director,” Paul McCausland, responded to Plaintiff’s request on

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January 12, 2012; somewhat confusingly, he noted both that the

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medical condition asserted was “feel faint; short of breath” and

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that there was “no medical condition asserted.”

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further noted that he “cannot comment in the absence of a medical

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condition” but also suggested that “flexible work breaks versus

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timed breaks” might be a reasonable accommodation.

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McCausland now asserts that recommendation of “flexible work

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breaks” was not an approval of a reasonable accommodation and was

(Id. at ¶¶ 9-12.)

Between October

(Pl.’s App’x Exs., Exs.

The first note appears to have been rejected by Amtrak

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(Id., Ex. 5.)

A “corporate medical

(Id., Ex. 9.)

(Id.)

He

Dr.

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conditioned on Plaintiff submitting additional medical

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documentation to verify that she suffered from a disability.

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(Decl. Paul McCausland, ¶¶ 6-7.)

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submitted another note from her doctor to Amtrak’s ADA Panel; this

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note stated that Plaintiff “should be allowed to take an outside

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break for 3-5 min every hour for fresh air.”

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Ex. 10.)

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until 3/31/12.”

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to the ADA panel’s request for additional documentation, Plaintiff

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On January 12, 2012, Plaintiff

(Pl.’s App’x Exs.,

The note indicated that this should continue “at least
(Id.)

On January 24, 2012, apparently in response

submitted yet another note, this one stating that:

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This patient has been under my care since October of 2011.

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She’s had complaints of shortness of breath and chest pain.

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The exact etiology has not yet been determined.

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She has undergone testing that includes an EKG, pulmonary

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function test, exercise treadmill and chest x-ray.

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studies are pending including a sleep study and CAT scan of

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the chest.

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pulmonologist.

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Additional

A consultation has also been obtained with a

(Id., Ex. 11.)

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In deposition testimony, Plaintiff states that she called

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Amtrak’s internal ethics and compliance hotline twice to report

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that she was sick and had not had an opportunity to meet with her

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supervisors to discuss her illness or accommodations.

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at 61-62.)

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dates of those calls, but that her best guess was that one occurred

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in December 2011 and the other occurred in January or February

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2012.

(Id., Ex. 26

Plaintiff states that she could not remember the exact

(Id. at 62.)

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In her declaration and in deposition testimony, Plaintiff

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states that Malva Reid, also of the ADA Panel, orally approved her

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request for an accommodation on February 3, 2012.

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218, 220; Decl. Robin Lambert, ¶ 8.)

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conversation took place on that date but do not agree that Ms. Reid

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orally approved an accommodation.

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However, Plaintiff states in her deposition testimony that

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thereafter she would periodically sign out of the phone system

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using the “medical” code, under the belief that Ms. Reid had

(Id., Ex. 26 at

Defendants do not deny that a

(Mot. Summ. J. at 9 & n.8.)

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approved her accommodation.

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Plaintiff also testifies that she was instructed to do so by her

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supervisor.

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Plaintiff a letter seeking documentation of a “diagnosis” so that

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the ADA Panel could consider her request for an accommodation.

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(Decl. Jon Hendricks, Ex. A at 157.)

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sent Plaintiff another letter stating that “based on the medical

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documentation provided, you did not have a diagnosed medical

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condition.”

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the ADA Panel receives this medical documentation, you do not have

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an ADA accommodation and we cannot consider your request.”

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On June 18, 2012, Ms. Reid and Plaintiff exchanged emails as to the

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documentation required.

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that “the ADA Panel needs to have a medical diagnosis to consider

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you for an ADA accommodation” and that “[a]ll of the documentation

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you have sent . . . does not provide a medical diagnosis but only

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list [sic] symptoms that are unrelated to a medical diagnosis or

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that you need a break.”

(Pl.’s App’x Exs., Ex. 26 at 221.)

(Id. at 170, 189.)

(Id. at 158.)

On March 29, 2012, Ms. Reid sent

On June 11, 2012, Ms. Reid

The letter further stated that “[u]ntil

(Id. at 160.)

(Id.)

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(Id.)

Ms. Reid’s email indicated

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Parallel to Plaintiff’s efforts to obtain an accommodation,

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disciplinary proceedings were instituted against her.

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2011, Plaintiff was summoned to several meetings denominated

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“Intent to Impose Discipline meetings.”

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her to appear at such a meeting is dated August 17, 2011;

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subsequent letters are dated November 20, 2011, and December 16,

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2011.

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violations of policy beginning in July 2011 and running up to late

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November 2011.

(Decl. Diane Pitts, Exs. H-J.)

(Id.)

In late

The first letter directing

The letters cite alleged

On December 8, 2011, Amtrak sent Plaintiff a

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letter directing her to appear at a formal hearing, set for January

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11, 2012, on the violations that allegedly occurred in July 2011.

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(Suppl. Decl. Jon Hendricks, Ex. 1 at 4.)

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have been rescheduled several times and eventually held on June 14,

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2012.

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Amtrak sent Plaintiff a letter informing her that the company was

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“activating” twelve days’ worth of suspension from work that were

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not imposed in previous cases, the appeals from which had been

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heard and decided by March 25, 2011.

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(Id. at 8, 40-43.)

The hearing appears to

Additionally, on January 10, 2012,

(Pl.’s App’x Exs., Ex. 8.)

At a June 14 hearing, the six policy violations alleged to

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have taken place in July 2011 were presented to Plaintiff; all of

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them were predicated on failure to obtain the permission of a

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supervisor before stepping away from her phone.

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Hendricks, Ex. 1 at 8-9.)

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some of the occasions alleged, she had been summoned by her union

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representative, who, she assumed, would have sought the permission

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of her supervisor before interrupting her work.

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This explanation was corroborated by the union representative, who

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stated that he did meet with Plaintiff on the dates in question and

(Suppl. Decl. Jon

Plaintiff, in response, stated that on

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(Id. at 21-23.)

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did ask her supervisor for permission to take Plaintiff off the

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phone.

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occasions in question she stepped away from her phone because she

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was sick and not feeling well.

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(Id. at 26-28.)

Plaintiff stated that on the other

(Id. at 21.)

Another hearing was also held on June 14, 2012, to investigate

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alleged violations of Amtrak’s policies in November 2011.

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App’x Exs., Ex. 14.)

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the time away from her phone during November was due to illness.

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(Id. at 15.)

(Pl.’s

At that hearing, Plaintiff stated that all

Plaintiff submitted at least one of the above-

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mentioned doctor’s notes into the record at that hearing.

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16.)

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her alleged disability and that she believed she had been approved

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for accommodation by Ms. Reid.

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behalf of Amtrak, however, stated that Plaintiff’s request for

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accommodation had been denied.

(Id. at

She also stated that she had made her supervisors aware of

(Id. at 16-17.)

A witness on

(Id. at 20.)

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On June 21, 2012, the hearing officer issued findings,

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including a finding that Plaintiff failed to comply with Amtrak’s

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policies when she stepped away from her phone without authorization

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from a “management representative.”

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Plaintiff was terminated the same day.

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(Pl.’s App’x Exs., Ex. 16.)
(Id., Ex. 17.)

On July 17, 2012, Plaintiff’s union appealed her termination

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and the hearing officer’s findings.

(Id., Ex. 22-23.)

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was denied.

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appealed to the National Railroad Adjustment Board (“NRAB”); that

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appeal was also denied.

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her administrative remedies by filing complaints with the

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California Department of Fair Employment and Housing, which closed

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the case due to insufficient evidence and issued a “right to sue”

(Decl. Diane Pitts, Exs. 1, 2.)

(Id., Ex. 3.)

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That appeal

Plaintiff then

Plaintiff then exhausted

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letter.

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superior court; that suit was then removed to this Court.

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of Removal generally.)

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II. LEGAL STANDARD

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(Compl., Ex. A.)

Plaintiff filed suit in a California
(Notice

Summary judgment is appropriate where the pleadings,

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depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show “that there is no

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genuine dispute as to any material fact and the movant is entitled

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to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A party

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seeking summary judgment bears the initial burden of informing the

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court of the basis for its motion and of identifying those portions

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of the pleadings and discovery responses that demonstrate the

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absence of a genuine issue of material fact.

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Catrett, 477 U.S. 317, 323 (1986).

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the evidence must be drawn in favor of the nonmoving party.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986).

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Celotex Corp. v.

All reasonable inferences from

Once the moving party meets its burden, the burden shifts to

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the nonmoving party opposing the motion, who must “set forth

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specific facts showing that there is a genuine issue for trial.”

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Anderson, 477 U.S. at 256. Summary judgment is warranted if a party

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“fails to make a showing sufficient to establish the existence of

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an element essential to that party's case, and on which that party

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will bear the burden of proof at trial.”

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A genuine issue exists if “the evidence is such that a reasonable

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jury could return a verdict for the nonmoving party,” and material

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facts are those “that might affect the outcome of the suit under

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the governing law.”

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genuine issue of fact “[w]here the record taken as a whole could

Celotex, 477 U.S. at 322.

Anderson, 477 U.S. at 248.

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There is no

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not lead a rational trier of fact to find for the nonmoving party.”

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986).

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III. DISCUSSION

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A.

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Third And Seventh Causes of Action
Plaintiff appear to have withdrawn her Third and Seventh

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Causes of Action.

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asserted or defended in the Opposition.

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dismisses these claims.

(Dkt. No. 41 at 123.)

These claims are not
The Court therefore

As the Third Cause of Action was the only

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claim asserted against Defendant Pitts, she is also dismissed from

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the action.

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B.

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Plaintiff’s Claim for Disability Discrimination Under FEHA
Plaintiff’s First Cause of Action alleges disability

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discrimination under FEHA.

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must show either that Plaintiff cannot establish one of the

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elements of a prima facie case of FEHA disability discrimination or

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that there was a legitimate, nondiscriminatory reason for the

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adverse personnel actions taken against Plaintiff.

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Airlines, Inc., 165 Cal. App. 4th 1237, 1247 (2008).

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does make a showing of a legitimate reason, Plaintiff may

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nonetheless defeat a summary judgment motion by showing that there

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is a triable issue of fact as to whether reason is merely

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pretextual.

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(2008).

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defendant to show that the plaintiff cannot prevail.

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1.

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To prevail on summary judgment, Amtrak

Avila v. Cont'l
If Amtrak

Arteaga v. Brink's, Inc., 163 Cal. App. 4th 327, 344

The burden in a summary judgment motion is on the
Id.

Prima Facie Case
To establish a prima facie case of disability discrimination

under FEHA, a plaintiff must show that “(1) he suffers from a
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disability; (2) he is otherwise qualified to do his job; and, (3)

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he was subjected to adverse employment action because of his

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disability.”

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1591368, at *1 (9th Cir. Apr. 10, 2015).

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stage, the level of proof required is “minimal and does not even

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need to rise to the level of a preponderance of the evidence.”

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Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998).

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a.

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Nigro v. Sears, Roebuck & Co., No. 12-57262, 2015 WL
At the summary judgment

Disability
A physical disability under FEHA is defined as, inter alia,

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“any physiological disease, disorder, condition, cosmetic

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disfigurement, or anatomical loss” that affects the “neurological,

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immunological, musculoskeletal, special sense organs, respiratory,

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including speech organs, cardiovascular, reproductive, digestive,

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genitourinary, hemic and lymphatic, skin, [or] endocrine” system,

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and that limits a major life activity, which includes working.

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Cal. Gov't Code § 12926(m).

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provided medical documentation to show, that as of at least October

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2011 she has suffered from shortness of breath, chest pain, and

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faintness.

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system and probably the speech organs as well, and pain affects the

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neurological system.

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Plaintiff has clearly stated, and has

Shortness of breath certainly affects the respiratory

Amtrak nonetheless argues that Plaintiff has not established

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that she suffers from a disability, because she has not shown that

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her doctor determined the cause of her symptoms or diagnosed her

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illness, and also because she did not provide Amtrak information as

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to how her disability affected her ability to work.

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(Reply at 6.)

As to the first point, a precise causal diagnosis is not
required to show that the plaintiff has a disability.
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Shortness of

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breath, chest pain, and faintness are “physiological conditions,”

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even if their ultimate cause remains a mystery; Defendant cites no

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authority suggesting otherwise.

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to remove from FEHA’s protection anyone with clearly defined

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symptoms whose underlying disease remains unknown.

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pathogens remain unknown, and many systemic diseases remain poorly

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understood or commonly misdiagnosed, this seems untenable and

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contradictory to the purpose of FEHA, which sets forth “broad

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definitions” of physical disability and protects even employees who

Indeed, to hold otherwise would be

Given that many

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merely have a “potential” disability or are “erroneously or

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mistakenly believed” to have a disability.

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12926.1.1

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Cal. Gov't Code §

As to the second point, although Amtrak’s knowledge is more

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properly considered under the third, causal prong, it is true that

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Plaintiff must show that her disability limits her ability to

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At oral argument, Amtrak cited Brundage v. Hahn for the
proposition that disability must be “the only inference possible”
from the symptoms presented. But, first, Amtrak misstates the
holding and posture of Brundage, in which the defendant employer
“[did] not contest that Brundage suffered from a disability.” 57
Cal. App. 4th 228, 236 (1997). The “only reasonable interpretation
of the known facts” language, id., applies to the question of the
employer’s knowledge, where the employer would be required to infer
a plaintiff’s disability, rather than being told of it directly.
(In Brundage, the plaintiff took an emergency leave of absence due
to mental illness and never returned. The defendant employer knew
only of the absence and had no notice of the plaintiff’s symptoms.)
Second, whether the facts demand a conclusion that a disability
existed will frequently be an triable issue of fact. This is true
regardless of whether a doctor has made a diagnosis: for example, a
doctor’s diagnosis might be called into question by a plaintiff’s
fraud on the doctor or by competing opinions as to plaintiff’s
disability after a defendant’s discovery exam. On summary
judgment, it cannot be the case that the plaintiff is required to
show that there is no alternative explanation of the facts.
Rather, the rule is that a defendant must show that plaintiff
cannot show that she has a disability. Avila, 165 Cal. App. 4th at
1247.
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pursue some major life activity.

Cal. Gov't Code § 12926(m)(1)(B).

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The relevant activity here seems to be working, although it would

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appear that speaking might also be affected by Plaintiff’s alleged

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disability.

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request for accommodations set forth, at least in broad strokes,

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the alleged limits on her ability to work and to speak.

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doctor’s letter dated November 14, 2011, stated that she needed

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occasional breaks to “go outside . . . to get some fresh air.”

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(Pl.’s App’x Exs., Ex. 6; see also id., Ex. 10 (“This pt should be

Plaintiff’s submissions to Amtrak in support of her

The

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allowed to take an outside break for 3-5 min every hour . . . .”).)

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Her request form stated that she needed “a few minutes to catch

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[her] breath,” and that she needed to “stand-up and/or got outside

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to get air.”

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it gets harder and harder to breath[e].”2

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requires employees to be on the phone except for scheduled breaks,

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lunch, and very small amounts of “personal shrinkage time,” (Decl.

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Diane Pitts, Ex. A), it is obvious that a disability that requires

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taking short, unscheduled breaks could affect Plaintiff’s ability

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to perform her duties in accordance with Amtrak’s policies.

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Additionally, Plaintiff’s own statement of her condition suggests

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that it progressively interferes with her ability to speak.

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all this, a rational jury could find that Plaintiff suffered or

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suffers3 a disability within the definition provided by FEHA.

(Id., Ex. 7.)

She also stated that “as I’m talking
(Id.)

As Amtrak

Given

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2

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At oral argument, Amtrak argued that shortness of breath
could be caused by, for example, running hard. Plaintiff’s
narrative, however, suggests that exertion was not the cause of her
alleged symptoms.
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Defendants allege in multiple places that Plaintiff’s
condition resolved itself by March 31, 2012. (E.g., Mot. Summ. J.
(continued...)
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b.

Whether Plaintiff Was Otherwise Qualified for Her Job
A person is not “otherwise qualified” for her job if she

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cannot perform the “essential duties” of her job with reasonable

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accommodations by the employer.4

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Because this is Amtrak’s motion for summary judgment, Plaintiff

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need not prove conclusively that she could have done so.

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it is up to the employer to show that she could not.

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Cal. App. 4th at 1247.

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Cal. Gov't Code § 12940(a)(1).

Rather,

Avila, 165

In this case, Amtrak has not shown that Plaintiff could not

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perform the essential duties of her job with reasonable

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accommodation.

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apparently 97.2% productivity.

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(deposition testimony of Diane Pitts explaining the standard).)

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Records show that, at least as to the two months for which she was

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disciplined, her average productivity was 96.9%, and on most days

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she exceeded the standard.

Amtrak’s standard for its phone operators is
(Pl.’s App’x Exs., Ex. 27 at 214

(Id., Exs. 1 & 2.)

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(...continued)
at 10.) The record does not necessarily support this contention.
Plaintiff’s doctor’s note of January 19, 2012, stated that she
would need accommodation “at least” until March 31, 2012.
Plaintiff stated in deposition testimony that she was able to
manage her condition without accommodation after March, (Decl. Jon
Hendricks, Ex. A at 122-23), but it is not clear that the condition
actually resolved itself. Rather, the evidence suggests that
Plaintiff (1) learned how to manage the anxiety that triggered some
of her physical problems and (2) resigned herself to living with a
certain amount of pain. (Id. at 121-22.)
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The parties occasionally seem to use this prong as an
opportunity to litigate the question of whether Plaintiff was or
should have been subject to discipline for failure to follow
policy. (E.g., Opp’n at 19.) That question, however, seems to be
more appropriately examined at a later stage, when the inquiry is
whether a defendant had a legitimate, nondiscriminatory reason for
taking the adverse action against the plaintiff. The “otherwise
qualified” inquiry is directed toward a capacity to fill the
functions of the job, not whether Plaintiff actually did so.
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Additionally, Plaintiff was employed at Amtrak for sixteen

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years, a fact which tends to suggest that she performed her

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essential duties adequately.

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at one point.

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presented no evidence to show that Plaintiff could not perform her

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duties.

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find Plaintiff capable of performing the essential duties of her

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job with reasonable accommodation.

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c.

She was also employed as a lead agent

(Decl. Jon Hendricks, Ex. A at 17.)

Defendant has

Defendant has not shown that a rational jury could not

Whether Plaintiff Suffered an Adverse Employment Action as a

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Result of Her Disability

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This prong is sometimes broken down into two parts: whether

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the plaintiff suffered an adverse employment action, and whether

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“some . . . circumstance suggests discriminatory motive.”

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Bechtel Nat. Inc., 24 Cal. 4th 317, 355, 8 P.3d 1089, 1113 (2000).

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Plaintiff clearly suffered adverse employment actions – suspension,

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disciplinary hearings, and termination.

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whether the facts suggest discriminatory intent.

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Guz v.

Thus, the primary question

California courts have “acknowledged the difficulty of proving

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intentional discrimination,” especially in the case of an

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institutional employer.

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4th 327, 342, 77 Cal. Rptr. 3d 654, 666 (2008).

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facie case, the focus is often on whether the employer knew of the

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disability.

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California Portland Cement Co., 150 Cal. App. 4th 864, 887 (2007).

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See also Brundage v. Hahn, 57 Cal. App. 4th 228, 236-37 (1997)

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(using knowledge as the determinative factor in a case under FEHA’s

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federal sister statute, the ADA).

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knowledge of the employee's condition, an employer can still be

Arteaga v. Brink's, Inc., 163 Cal. App.
Thus, in the prima

See Avila, 165 Cal. App. 4th at 1246-47; Faust v.

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“If an employer disclaims actual

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found liable for disability discrimination in cases where knowledge

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of a disability can be inferred.”

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Supp. 2d 1129, 1179 (E.D. Cal. 2009).

4

Jadwin v. Cnty. of Kern, 610 F.

In its briefs, Amtrak argues that the information Plaintiff

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provided Amtrak was insufficient to put anyone on notice that she

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was disabled, and that no one actually did regard her as disabled.

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However, the factual record shows that there is a genuine factual

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dispute on this point.

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declaration and deposition testimony that she told her supervisors

At a minimum, there is Plaintiff’s own

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that she was disabled, that they knew she was disabled, that she

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took breaks coded as “medical” without anyone questioning it, and

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that she called an ethics and compliance hotline to complain that

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she was not being accommodated.

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Exs., Ex. 26.)

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can serve as the basis for a finding of a genuine dispute where it

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is “based on personal knowledge, legally relevant, and internally

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consistent.”

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combined with Plaintiff’s multiple submissions of documentation of

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her medical needs from her doctor, Plaintiff’s evidence is

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sufficient to allow a rational jury to conclude that Amtrak

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generally and her supervisors in particular knew of her disability.

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Nor can it be said, as Amtrak suggests, that the adverse

(Decl. Robin Lambert; Pl.’s App’x

A plaintiff’s own testimony, even if self-serving,

Nigro, 2015 WL 1591368, at *2.

Particularly when

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personnel action was not “because of” the disability because the

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disciplinary decision-makers did not have notice of her disability.

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First, if the supervisors who knew that she was disabled set the

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disciplinary process in motion, and they were motivated by animus,

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that is sufficient to impute the motive to the company.

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Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (holding that a
14

Poland v.

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“subordinate's bias is imputed to the employer” if “the biased

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subordinate influenced . . . the decision or decisionmaking

3

process,” and citing cases).

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least some supervisors who may have known of Plaintiff’s disability

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were involved in setting the disciplinary process in motion.5

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supervisor made the decision to “activate” previously-unimposed

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discipline on Plaintiff in January, 2012.6

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although unclear in the record, that those supervisors were

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involved in the decision to terminate Plaintiff.7

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On this record, it appears that at

One

It is also possible,

Second, in this case, the decision-makers were explicitly put

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on notice that Plaintiff had a disability and that the disability

12

was the reason for at least some of her supposed infractions.

13

Plaintiff’s alleged disability was discussed at her hearings,

14

(Pl.’s App’x Exs., Ex. 14 at 15-17), and it was even noted in the

15

hearing officer’s findings that Plaintiff “had medical conditions

16
17
18
19
20
21
22
23
24
25
26

5

For example, Dee Ruiz, Plaintiff’s manager, states that she
initiated discipline against Plaintiff. (Decl. Dee Ruiz, ¶ 7.)
Ruiz disclaims knowledge of the disability. (Id.) But this is
contradicted by Plaintiff’s deposition testimony that she talked to
her supervisors, including Ruiz, about her disability and her
attempt to get an accommodation. (Decl. Jon Hendricks, Ex. A, Part
1 at 23.) The Court declines to decide that one of these stories
is more credible than the other. “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge, whether he
is ruling on a motion for summary judgment or for a directed
verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
6

Decl. Dee Ruiz, ¶ 2 (Ms. Ruiz was “responsible for
implementing discipline already assessed . . . by a manager after
the employee was found guilty”); Decl. Jon Hendricks, Ex. A, Part 3
at 373 (letter imposing discipline signed by Ms. Ruiz).
7

27
28

Compare Pl.’s App’x Exs., Ex. 19 (termination letter signed
by Yolanda Mentz, cc’ing Diane Pitts and Dee Ruiz), with Decl. Jon
Hendricks, Ex. A, Part 1 at 128 (Plaintiff asserts in deposition
that it was Diane Pitts who made the final decision to fire her).
15

1

that caused [her] to exceed the Shrinkage Policy.”

(Id., Ex. 16;

2

Decl. Diane Pitts, Ex. M.)

3

prove that anyone at Amtrak believed that her medical issues were

4

legally considered a disability:

Notably, Plaintiff does not need to

5

[A]n employer knows an employee has a disability when the

6

employee tells the employer about his condition, or when the

7

employer otherwise becomes aware of the condition, such as

8

through a third party or by observation.

9

only know the underlying facts, not the legal significance of

The employer need

10

those facts.

Accordingly, whether defendant knew alcohol

11

abuse is considered a “disability” is of no consequence here.

12

It is sufficient that defendant knew plaintiff had an alcohol

13

problem.

14

Faust v. California Portland Cement Co., 150 Cal. App. 4th 864, 887

15

(2007) (quoting Schmidt v. Safeway Inc., 864 F.Supp. 991, 997

16

(D.Or. 1994)) (internal quotation marks omitted) (emphases added).

17

See also Jadwin v. Cnty. of Kern, 610 F. Supp. 2d 1129, 1179 (E.D.

18

Cal. 2009) (“Liability for disability discrimination does not

19

require professional understanding of the plaintiff's condition. It

20

is enough to show that the defendant knew of symptoms raising an

21

inference that the plaintiff was disabled.”) (emphasis added).

22

A rational jury could therefore conclude that the decision-

23

makers at Amtrak either had direct knowledge of Plaintiff’s

24

disability or disciplined her in a process set in motion by or

25

influenced by supervisors who had knowledge.

26

Consequently, Defendant has not shown that Plaintiff cannot

27

make out some element of a prima facie case.

28

///
16

1

2.

2

Legitimate, Nondiscriminatory Reason
Amtrak may nonetheless prevail on its summary judgment motion

3

if it can show that it had a legitimate, nondiscriminatory reason

4

for pursuing its adverse employment actions against Plaintiff and

5

that Plaintiff cannot convince a rational jury that its reason is a

6

mere pretext for discrimination.

7

344.

8
9

Arteaga, 163 Cal. App. 4th at

Amtrak presents a reasonable case that it had a legitimate,
nondiscriminatory reason for investigating, and ultimately

10

terminating Plaintiff.

11

violating a policy that required her to seek a supervisor’s

12

permission before taking unscheduled breaks.

13

disciplinary hearings that ultimately resulted in her being

14

terminated was for alleged policy violations that occurred in July

15

2011, and Plaintiff received notice of impending discipline for

16

those violations in August 2011 – well in advance of when Plaintiff

17

sought out medical care for her alleged disability.

18

Lambert, ¶ 5.)

19

disciplined for minor violations could suggest that the company had

20

presented her with plenty of opportunities to shape up before

21

finally determining that she should be terminated for failing to

22

adhere to policy.

23

3.

24

Amtrak asserts that it fired Plaintiff for

One of the

(Decl. Robin

Additionally, Plaintiff’s long history of being

Pretext
Amtrak having made a sufficient showing that it could have had

25

a legitimate, nondiscriminatory reason for taking the adverse

26

actions, the burden is on Plaintiff to demonstrate that the reason

27

is merely pretextual.

28

4th 215, 224 (1999).

Hanson v. Lucky Stores, Inc., 74 Cal. App.

17

1

Pretext may be inferred from the timing of the discharge

2

decision, the identity of the decision-maker, or by the

3

discharged employee's job performance before termination.

4

Pretext may be demonstrated by showing that the proffered

5

reason had no basis in fact, the proffered reason did not

6

actually motivate the discharge, or, the proffered reason was

7

insufficient to motivate discharge.

8

Hanson, 74 Cal. App. 4th at 224 (citation omitted) (internal

9

quotation marks and ellipsis omitted).

Plaintiff’s evidence may be

10

direct or circumstantial and must be sufficient to meet the summary

11

judgment burden.

12

1018, 1028-29 (9th Cir. 2006).

13

Cornwell v. Electra Cent. Credit Union, 439 F.3d

In this case, there are several grounds on which a rational

14

jury could find that the proffered reasons for the adverse actions

15

are pretextual.

16

First, the jury might find that Amtrak’s policy itself is

17

inherently discriminatory, either on its face or as applied in

18

practice.

19

(2009) (“McKesson's attendance policy operated to the disadvantage

20

of employees who, like Roby, had disabilities or medical conditions

21

that might require several unexpected absences in close

22

succession.”).

23

to adhere to policy would itself be discriminatory and therefore

24

pretextual.

25

inquiry discussed above.

26

violation of policy, not for being unable to meet the company’s

27

performance standard.

28

standard despite being in technical violation of policy, and if the

See, e.g., Roby v. McKesson Corp., 47 Cal. 4th 686, 695

In that case, disciplining an employee for failure

This is related to the “essential duties of the job”
Amtrak argues that it fired Plaintiff for

But if an employee can meet the performance

18

1

policy itself disfavors the disabled, then the policy is merely a

2

pretext for weeding out the disabled for reasons unrelated to the

3

employee’s essential duties, and it cannot serve as a legitimate,

4

nondiscriminatory reason for the adverse actions.

5

Plaintiff’s long history with the company, including her

6

disciplinary history, would seem to cut both ways as evidence.

7

Although that history might convince a jury that she was a

8

discipline problem, it might just as easily convince a jury that

9

these supposed infractions were nothing out of the ordinary, that

10

Amtrak had a highly rigid disciplinary system that routinely called

11

employees on the carpet for minor offenses, that such offenses were

12

not termination-worthy, and that the only thing that had changed in

13

this situation was Plaintiff’s disability.

14

Amtrak argues that it had a non-discriminatory reason to

15

terminate plaintiff independent of her alleged disability, because

16

she was disciplined in part for events occurring in July 2011,

17

before Plaintiff sought medical assistance.

18

testified at deposition that she began to experience symptoms as

19

early as July.

20

may be self-serving and not credible, but that is a determination

21

for the jury to make.

22

were adverse personnel actions beyond just the termination.

23

Amtrak’s mysterious resurrection of previously-unimposed

24

suspensions after Plaintiff revealed her disability and asked for

25

accommodations, as well as Plaintiff’s being subjected to

26

disciplinary hearings and their findings of non-compliance with

27

policy (especially as to the November violations), were adverse

28

actions separate from the final decision to terminate.

But Plaintiff has

(Decl. Jon Hendricks, Ex. A at 46.)

That testimony

It should also be borne in mind that there

19

1

Moreover, the hearing for the July 2011 violations was held on

2

the same day and with the same parties as the hearing for the

3

November 2011 violations.

4

November violations, at least, were solely the result of her

5

disability and should not have been considered violations, then a

6

rational jury could find that the hearing on those violations was

7

prejudicial as to both the findings in the hearing on the July

8

violations and the final termination decision.

9

could also find circumstantial evidence of animus in the fact that

If Plaintiff is correct that the

A rational jury

10

the hearing officer seemed entirely unwilling to accept Plaintiff’s

11

explanation for most of the alleged July violations – namely, that

12

her union representative had pulled her off duty, and that she had

13

a good-faith belief that he had obtained supervisor permission.

14

Plaintiff’s explanation was bolstered by the union representative’s

15

testimony that he had sought permission.

16

course, that the hearing officer did not find Plaintiff’s witness

17

credible.

18

motivated by animus and determined to find that she had violated

19

the policy regardless of evidence to the contrary.

20

It is possible, of

But it is also possible that a jury could find he was

The jury might also find that Amtrak fired Defendant both

21

because she violated policy and because of discriminatory animus.

22

“In such cases, a plaintiff may prevail on a FEHA claim by proving

23

that discrimination was a substantial factor motivating a

24

particular employment decision, even if the decision was also based

25

on non-discriminatory criteria.”

26

Servs., Ltd., No. EDCV 13-0268 JGB, 2014 WL 4105262 (C.D. Cal. Aug.

27

19, 2014) (internal quotation marks omitted).

McInteer v. Ashley Distribution

28
20

1

In short, Plaintiff presents credible circumstantial evidence

2

sufficient to create a triable issue of material fact on the

3

question of Amtrak’s reason for taking the adverse actions against

4

Plaintiff.

5

C.

Arteaga, 163 Cal. App. 4th at 344.

Failure to Engage in the Interactive Process and Provide

6

Reasonable Accommodations

7

Plaintiff’s Fourth and Fifth Causes of Action assert that

8

Amtrak failed to engage in an “interactive process” with Plaintiff

9

to attempt to reach a reasonable accommodation for her to work with

10

her disability, and also that no such accommodation was made.

11

1.

12

Interactive Process
Under FEHA, an employer must “engage in a timely, good faith,

13

interactive process with the employee or applicant to determine

14

effective reasonable accommodations” for her disability.

15

Gov't Code § 12940(n).

16

reasonably accommodate the claimant's disability, the trial court's

17

ultimate obligation is to isolate the cause of the breakdown and

18

then assign responsibility so that liability for failure to provide

19

reasonable accommodations ensues only where the employer bears

20

responsibility for the breakdown.”

21

Grp., Inc., 166 Cal. App. 4th 952, 985 (2008).

22

Cal.

“When a claim is brought for failure to

Nadaf-Rahrov v. Neiman Marcus

Here, a rational jury could find that Amtrak was responsible –

23

at least in part – for the breakdown in the interactive process.

24

Plaintiff’s evidence shows that she submitted multiple doctor’s

25

notes and filled out Amtrak’s form requesting an accommodation.

26

Plaintiff’s own testimony, which a jury could find credible,

27

asserts that she engaged in phone conversations with the ADA Panel

28

in order to obtain an accommodation.
21

Plaintiff and Amtrak agree

1

that the reason Plaintiff was not granted an accommodation was

2

because the ADA Panel demanded a “diagnosis,” although it was aware

3

of her symptoms, the work limitations they imposed on her, and her

4

need for occasional short breaks in order to continue working.

5

discussed above, an employer cannot demand a “diagnosis” where it

6

has knowledge of symptoms giving rise to an inference of

7

disability.

8

providing reasonable accommodations, the employer may be held

9

responsible for the breakdown in the interactive process.

As

Where an employer makes unreasonable demands before

10

Nadaf-Rahrov, 166 Cal. App. 4th at 986 (denying employer summary

11

judgment because “a jury could find that Neiman Marcus's demand for

12

a medical release before it would reengage in the interactive

13

process was unreasonable”).

14

A rational jury could therefore find that the breakdown in the

15

process originated with Amtrak, and that Amtrak should be held

16

responsible.

17

2.

18

Reasonable Accommodation
Under FEHA, an employer must “make reasonable accommodation

19

for the known physical or mental disability of an applicant or

20

employee.”

21

required to make an accommodation that would “produce undue

22

hardship” to the employer.

23

Cal. Gov't Code § 12940(m).

An employer is not

Id.

Amtrak provides no evidence showing that Plaintiff’s requested

24

accommodation (or some other accommodation) would have caused it

25

hardship.

26

accommodate Plaintiff because she was the cause of the breakdown in

27

the interactive process.

Instead, Amtrak argues that it was not required to

(Mot. Summ. J. at 21.)

28
22

As discussed

1

above, however, a rational jury could come to a different

2

conclusion on that point.

3

Amtrak further argues that “Plaintiff cannot establish that

4

she had any need for the reasonable accommodation requested,”

5

because she actually took breaks from work at least from February

6

3, 2012, to March 31, 2012.

7

contrary to the public policies embodied in the FEHA.

8

before the FEHA was enacted, there were occasionally employees who

9

on their own initiative took accommodations that their employers

(Id.)

But Amtrak’s argument seems
Surely even

10

were unaware of or chose not to punish.

11

is to require employers to formally provide reasonable

12

accommodations – not to leave it up to employees to seize whatever

13

accommodations they can get away with.

The point of the statute

14

Additionally, a jury could find that some or all of

15

Plaintiff’s alleged policy violations should have been excused

16

based on her disability.

17

amount to requiring a retroactive accommodation.

18

But that is not so.

19

2012, long after Amtrak had whatever notice it had of Plaintiff’s

20

alleged disability.

21

Amtrak should have reasonably accommodated Plaintiff’s disability

22

in June 2012 by not holding her responsible for the alleged policy

23

violations.

24

D.

25

Amtrak appears to argue that this would
(Id. at 21-22.)

The disciplinary hearing occurred in June

At a minimum, a rational jury could find that

Retaliation
Plaintiff’s Second Cause of Action alleges that she was

26

retaliated against, in violation of FEHA.

27

under FEHA follows the same analytical pattern as a claim for

28

discrimination:
23

A claim for retaliation

1

[T]he plaintiff must show (1) he or she engaged in a protected

2

activity; (2) the employer subjected the employee to an

3

adverse employment action; and (3) a causal link existed

4

between the protected activity and the employer's action.

5

Once an employee establishes a prima facie case, the employer

6

is required to offer a legitimate, nonretaliatory reason for

7

the adverse employment action.

8

legitimate reason for the adverse employment action, the

9

presumption of retaliation “drops out of the picture,” and the

If the employer produces a

10

burden shifts back to the employee to prove intentional

11

retaliation.

12
13

Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005).
Amtrak argues that Plaintiff did not engage in a protected

14

activity, because requesting an accommodation is not, in itself, a

15

protected activity.

16

is defined as “oppos[ing] any practices forbidden under this part.”

17

Cal. Gov't Code § 12940(h).

18

ethics and compliance hotline to complain of what she perceived as

19

stonewalling in providing her accommodations easily satisfies the

20

first prong.

21

that she filed internal grievances against Diane Pitts and Dee

22

Ruiz, her supervisor and manager.

23

Part 1 at 141.)

24

all the reasons discussed above.

25

That is true: under FEHA a protected activity

However, Plaintiff’s calls to the

Plaintiff has also stated in her deposition testimony

(Decl. Jon Hendricks, Ex. A,

Plaintiff can also establish adverse actions, for

Where Plaintiff’s evidence is thinnest, however, is in showing

26

a causal link between her complaints and the adverse actions

27

against her.

28

supervisors were aware that she made the calls or filed the

She has not provided direct evidence that her

24

1

grievances.

2

to the hotline or other formal complaints are in the record at this

3

point – especially given that Defendant does acknowledge that some

4

calls took place and some grievances were filed.

5

18.)

6

Amtrak’s internal investigation of the complaints.8

7

It is surprising that no records of Plaintiff’s calls

(Mot. Summ. J. at

Nor has either party placed into the record any evidence of

Nonetheless, although the evidence is thin, it is sufficient

8

to allow a rational jury to infer that Ruiz and Pitts had knowledge

9

of at least some opposition to the company’s failure to

10

accommodate.

11

investigation of Plaintiff’s complaints is not presented, a jury

12

might infer that such an investigation took place, or that

13

Plaintiff’s supervisors were otherwise alerted to Plaintiff’s

14

opposition to their policies and acts, based on Plaintiff’s

15

testimony that she called the ethics and compliance hotline and

16

lodged formal complaints through the grievance process.

17

Plaintiff’s testimony on this point is reasonably specific; she

18

gives approximate dates, details of what discriminatory/unlawful

19

practices she alleged, and gives the name of a person she

20

complained to.

21

41.)

22

First, although direct evidence of an internal

(Decl. Jon Hendricks, Ex. A, Part 1 at 123-24, 139-

Second, Plaintiff presents at least some testimony that she

23

directly confronted her supervisors about what she believed to be

24

discriminatory acts.

She specifically says that she complained to

25
26
27
28

8

Plaintiff suggests that no such investigation took place,
(Opp’n at 22), but that does not help Plaintiff’s retaliation
claim; if Amtrak conducted no investigation, that seems to make it
less likely, not more, that Ms. Ruiz and Ms. Pitts knew that
complaints had been filed against them.
25

1

Dee Ruiz and Gloria Stackhouse, another supervisor, that she was

2

being disciplined differently from others because she was sick.

3

(Id. at 137.)

4

that her “medical” decision and her disciplinary hearings were

5

being handled differently from those of others.

She also states that she complained to Ms. Pitts

(Id. at 135-36.)

6

Against this self-serving testimony, of course, the jury must

7

weigh the affirmative (if also self-serving) testimony of Ruiz and

8

Pitts that they did not know of any complaints and did not initiate

9

discipline against Plaintiff for retaliatory reasons.

(Decl. Dee

10

Ruiz, ¶ 7; Decl. Diane Pitts, ¶ 10.)

11

the lack of evidence of an internal investigation that might have

12

tipped Ruiz and Pitts to the existence of Plaintiff’s formal

13

complaints.

14

favorable to Plaintiff and drawing all inferences in her favor, the

15

Court finds that Plaintiff can present at least some evidence

16

raising an inference that her supervisors knew of overt acts of

17

opposition to alleged FEHA violations.

18

her retaliation claim.

19

E.

The jury may also consider

Nonetheless, taking all evidence in the light most

Thus, she may proceed with

Failure to Prevent Discrimination/Retaliation and Wrongful

20

Termination in Violation of Public Policy

21

Amtrak argues that Plaintiff’s Sixth and Eighth Causes of

22

Action, for “failure to prevent” discrimination and retaliation and

23

for wrongful termination in violation of public policy, fail

24

because the underlying claims fail.

25

This is true as to the retaliation claim, but not as to the

26

discrimination claim, for reasons discussed above.

27

these claims survive inasmuch as they rest upon the underlying

28

discrimination claim.
26

(Mot. Summ. J. at 22-23.)

Therefore,

1
2

IV.

CONCLUSION
Plaintiff’s Third and Seventh Causes of Action are dismissed.

3

Defendant Pitts is dismissed from the case.

4

motion for summary judgment is DENIED as to the remaining Causes of

5

Action.

Defendant Amtrak’s

6
7

IT IS SO ORDERED.

8
9
10

Dated: April 29, 2015
DEAN D. PREGERSON
United States District Judge

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