Dave DelGiacco v. Cox Communications Inc et al

Filing 96

ORDER by Judge David O. Carter: GRANTING Defendant Cox Communications, Inc.'s Motion for Summary Judgment 48 ; GRANTING IN PART AND DENYING IN PART Defendants Cox Communications California LLC's and Coxcom, LLC's Motion for Summary J udgment 49 ; DENYING AS MOOT Defendant Cox Enterprises, Inc.'s Motion for Summary Judgment 50 ; DENYING Plaintiff's Motion for Sanctions 52 . Setting Mandatory Settlement Conference with Magistrate Judge McCormick on Monday, April 13 , 2015, at 11:00 AM. Setting Briefing Schedules for Motions in Limine 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 90 91 92 . Requiring Lodging of Amended Final Pretrial Order 93 . (See Order for further details). (jtil)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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DAVE DELGIACCO,

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Plaintiff,

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Case No.: SACV 14-0200 DOC(DFMx)
ORDER
GRANTING DEFENDANT COX
COMMUNICATIONS, INC.’S MOTION
FOR SUMMARY JUDGMENT [48]

vs.

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COX COMMUNICATIONS, INC.; COX
ENTERPRISES, INC.; COX
COMMUNICATIONS CALIFORNIA,
LLC; and COXCOM, LLC,

GRANTING IN PART AND DENYING IN
PART DEFENDANTS COX
COMMUNICATIONS CALIFORNIA,
LLC’S AND COXCOM, LLC’S MOTIONS
FOR SUMMARY JUDGMENT [49]

Defendants.

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DENYING AS MOOT DEFENDANT COX
ENTERPRISES, INC.’S MOTION FOR
SUMMARY JUDGMENT [50]

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DENYING PLAINTIFF’S MOTION FOR
SANCTIONS [52]

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SETTING MANDATORY SETTLEMENT
CONFERENCE WITH MAGISTRATE
JUDGE MCCORMICK ON MONDAY,
APRIL 13, 2015, AT 11:00 A.M.

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SETTING BRIEFING SCHEDULE FOR
MOTIONS IN LIMINE [74] [75] [76] [77]
[78] [79] [80] [81] [82] [83] [84] [85] [86]
[87] [88] [90] [91] [92]

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REQUIRING LODGING OF AMENDED
FINAL PRETRIAL ORDER [93]

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Before the Court are Defendant Cox Communications, Inc.’s Motion for Summary

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Judgment (“CCI Mot.”) (Dkt. 48), Defendants Cox Communications California, LLC’s and

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CoxCom, LLC’s Motion for Summary Judgment (“CCC Mot.”) (Dkt. 49), Defendant Cox

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Enterprises, Inc.’s Motion for Summary Judgment (“CEI Mot.”) (Dkt. 50), and Plaintiff’s

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Motion for Sanctions (“Sanctions Mot.”) (Dkt. 52).

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I. Background

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This case arises from Plaintiff Dave DelGiacco’s claim that his employer suspended him

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for taking Family Medical Leave Act (FMLA) leave and that his employer failed to reasonably

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accommodate his need to check his blood sugar levels to manage his type II diabetes. See

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generally Compl. (Dkt. 1).
A. Facts

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1. Plaintiff’s Job

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Plaintiff worked as a retention representative for “Cox,” a cable television and internet

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services provider, in Orange County, California from approximately May 2008 to December

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2011. The parties dispute which Cox entities actually employed Plaintiff. This issue is discussed

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in greater detail infra. His job was to answer phone calls from customers who wanted to cancel

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service, to resolve customer concerns and issues, and to upsell services. CCC-PAF Nos. 1-2.1

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His direct supervisor from 2009 to October 2011 was Erica Wilson. Wilson’s

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replacement Mariza Garcia was Plaintiff’s direct supervisor from November 2011 until his

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suspension on December 7. Erica Wilson Dep. 162:1-163:16. Wilson, and later Garcia, oversaw

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Plaintiff’s work on a day-to-day basis. They, in conjunction with their boss, retention

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department manager Jessica Allsopp, made decisions on scheduling the work day of Plaintiff

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and approximately twelve other retention representatives. CCC-SUF Nos. 13, 28, 95. In 2011,

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The Court will refer to Plaintiff’s Additional Facts submitted in connection with Defendants Cox
Communications California, LLC, and CoxCom, LLC’s Motion as “CCC-PAF” (Dkt. 53-1) and Defendants’
undisputed facts as “CCC-SUF” (Dkt. 49-2). Similarly, the Court will refer to Plaintiff’s Additional Facts
submitted in connection with Defendants Cox Communications, Inc.’s Motion as “CCI-PAF” (Dkt. 54-1) and
Defendants’ undisputed facts as “CCI-SUF” (Dkt. 48-2).
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the human resources employee who consulted with Plaintiff's department was Chona Boretti.

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CCC-SUF No. 21.

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Plaintiff had two fifteen-minute rest breaks and a half-hour lunch break provided every

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day. In addition to regular breaks, all agents were permitted to use a “personal” code in their

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phone system to temporarily stop calls for personal needs, such as going to the bathroom. CCC-

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SUF Nos. 49-50. The expectation of Plaintiff’s position was that he would be available to

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answer phone calls 88% of the day, excluding meal and rest breaks. Plaintiff can recall only one

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month, in 2010 or 2011, when Erica Wilson raised any issues with his occupancy level on the

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phones. CCC-SUF Nos. 54-55. Plaintiff sometimes smoked during his rest breaks. He

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sometimes sent personal emails and joked and bantered with his friends at Cox in person or over

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chat messages during the workday. CCC-SUF Nos. 58-59.

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2. Plaintiff’s Health Issues and Alleged Requests for Accommodations

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Plaintiff was first diagnosed with type II diabetes in January 2010. CCC-SUF No. 36. At

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the time of his diagnosis, he was educated on the course of care he should follow for diabetes,

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including the need to “test your blood before you eat, test your blood after you eat, test your

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blood if you're not feeling well.” CCC-SUF No. 37. The blood test would take 30 seconds to a

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couple of minutes. After his diagnosis in January 2010, Plaintiff needed to test his blood from

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one to ten times a day. He usually tested his blood from one to four times per day during work

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hours. He usually tested his blood at his desk or sometimes in his car, both during and outside of

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rest break and meal break times. CCC-SUF Nos. 38-44, 46. Sometimes Plaintiff took

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intermittent FMLA leave during a workday, ranging in duration from a few minutes to a few

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hours, to test his blood sugar levels. On the days when he took FMLA leave, he may have tested

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his blood sugar other times during that same day, without needing to take FMLA leave for that

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other testing. CCC-SUF No. 47.

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From August 2010 to January 2011, Plaintiff took FMLA leave first to care for his wife

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while she was dying from cancer, and after her death, to take care of his own post-traumatic

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stress disorder (“PTSD”), anxiety disorder, and major depressive disorder. CCC-PAF Nos. 23-

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25. Prior to returning from caring for his wife and himself, he was asked to identify any medical
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restrictions that he may have, and his doctor stated that he was prepared to “resume his duties

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from a medical perspective as of 1/3/11.” CCC-SUF No. 61. When Plaintiff returned from leave

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in January 2011, he says everyone was “Very professional, very congenial, very welcoming.”

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CCC-SUF No. 135.
a. Request for “Medical” Code

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After returning to work, Plaintiff claims to have asked his supervisor Erica Wilson about

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a code that he could use to log off the phone system, without any adverse consequences, such

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that he could take additional short breaks during his shift to check his blood sugar levels and

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manage his diabetes. CCC-PAF No. 12. Plaintiff claims that he was told there was no code and

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that there was no other alternative accommodation available, even though Cox in fact did have a

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“medical” code for its employees. CCC-PAF Nos. 14-15.
b. Request to Stand Up and Walk Around

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Plaintiff also claims that he vocalized a need for accommodation to Erica Wilson.
Plaintiff testified at his deposition that he recalls
going in and talking to Erica that I’m a diabetic, and I need accommodations. And
one of the accommodations that I need was for my neuropathy. You know, Erica
was a fantastic supervisor over there at Cox, you know, directing me towards
Chona. As you can see. I spoke to Erica about my medical condition, and then she
directed me to Chona. . . . Chona was in human resources department.
CCC-SUF Nos. 63-64.
On July 7, 2011 at 5:27 p.m., Plaintiff sent an email to Chona Boretti in HR stating that

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he spoke to his supervisor about his medical condition and its “nothing that seems to be serious,

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although she mentioned I should speak to you to document. My medical condition requires that I

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walk around at times to increase circulation in my legs to slow the progression of the disease,”

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and inquired if he could get a code to log off the phones so he could get up and move around.

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CCC-SUF No. 66. Boretti responded in writing the next morning stating “it appears from your

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information below that you are not seeking a medical leave of absence but requesting temporary

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restrictions to be made at work due to a medical condition you have,” and that she needed a

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doctor’s note “indicating the specific restriction and how long a period these restrictions would
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be for.” She gave examples such as “no bending, kneeling, walking on right leg for two weeks

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beginning 6.8.11” for specificity to be included in the note. Her letter concluded, “due to HIPPA

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regulations, please do not disclose the specific medical condition you have.” CCC-SUF No. 67.

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Neither Plaintiff nor Boretti recall Plaintiff providing her a medical note. Plaintiff claims he

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provided medical documentation to Cox’s FMLA administrator. DelGiacco Decl. ¶ 24 (Dkt. 53-

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3).

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In 2011, Cox contracted with an ergonomics consultant, Mike Gee, who runs a company

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called Pro-Fit Ergonomic Solutions, and he engaged in workplace assessments, including

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recommending changes to work stations to avoid injury. In 2011, Gee visited company offices

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every week or two and met with employees who had been identified as needing his assistance

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with ergonomic related issues. Plaintiff believes that either his supervisor or Boretti sent Gee an

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email, instructing Gee to contact Plaintiff. Plaintiff states that Gee “came over, he

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accommodated, he put a thing on my desk that I could lift it up so I could stand up.” Gee also

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provided Plaintiff some exercises he could do. Plaintiff had a wireless headset in 2011. For a

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time, Plaintiff could walk around the office while on the phone without limitation, but later he

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was told he had to stay closer to his own desk. CCC-SUF Nos. 77-83.

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c. Request for Private Space
Plaintiff also claims to have vocalized a need for accommodation to Mariza Garcia.

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Garcia became Plaintiff’s supervisor in November 2011, after transferring from another

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department. CCC-SUF Nos. 84-85. Plaintiff claims there was a nurse who worked for Aetna

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who suggested to him that he test in “a private area where he can be calm.” He never asked for

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or was provided a note from this nurse discussing this suggestion to test in a private area. On

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November 16, 2011, Plaintiff sent an email to Garcia stating, “Mariza . . . did you find out about

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a place to test my glugose [sic] levels? No big . . . . just checking. . . .” CCC-SUF Nos. 86-88.

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Garcia summarized Plaintiff’s concerns in an email to Chona Boretti in HR in November 2011,

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and Boretti responded to her with specific questions. CCC-SUF No. 89. Plaintiff claims he never

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heard back from Garcia or anyone else at Cox. DelGiacco Decl. ¶ 9. Garcia recalls telling him

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he could use an empty office or a locking bathroom close to him. Garcia Decl. ¶ 10 (Dkt. 49-3).
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3. Plaintiff’s Suspension

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On December 7, 2011, Plaintiff was suspended from his job after a meeting with his

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supervisor Garcia, her supervisor Jessica Allsopp, and HR representative Chona Boretti.

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Defendants maintain that Plaintiff was suspended because he mishandled some customer calls

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by intentionally hanging up on them or transferring them to other departments. Defendants claim

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that Garcia and Allsopp discovered these allegedly mishandled calls on December 6, 2011 when

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Allsopp used tapes of calls handled by Plaintiff and others to train Garcia on using Qfiniti

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software to monitor agents’ calls. See CCC-SUF Nos. 101-114. The problematic calls included

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calls where Plaintiff disconnected before the customer did, where Plaintiff allegedly transferred

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a customer who wished to disconnect to the sales department, where Plaintiff allegedly

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transferred to tech a customer who wished to cancel voicemail, and where Plaintiff allegedly

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improperly told a customer who wished to cancel in two weeks that it was too soon and they

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should go to a retail store. See CCC-SUF Nos. 112-113. That day, Allsopp called and emailed

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her boss, Pablo Pareja, about the issues she identified with Plaintiff’s calls. CCC-SUF No. 140.

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The next day, on December 7, she sent an email to the IT department seeking records that would

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show which calls where Plaintiff hung up before the customer. CCC-SUF No. 112.

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Plaintiff does not dispute that handling calls in the manner described would be against the

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company’s policy. CCC-SUF Nos. 116-118, 124, 129. However, he vigorously disputes that he

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actually mishandled any calls. He asked at the December 7 meeting to listen to the calls, but

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Allsopp refused to allow him to listen to the calls. CCC-PAF Nos. 79-80, 83. The tapes of the

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calls have since disappeared. The only records left are Allsopp’s notes and a spreadsheet sent by

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the IT department.

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Plaintiff was told on December 7 that it would be about a week until the investigation

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was completed. CCC-SUF No. 141. On December 12, Plaintiff certified that he was disabled

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and unable to work due to a medical condition as of December 6, 2011. CCC-SUF No. 131. He

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has not returned since. Cox made the decision to fire him a few days after he went on medical

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leave. However, they never formally notified Plaintiff of their decision. CCC-PAF No. 4.

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B. Procedural History

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Plaintiff has filed three complaints with California’s Department of Fair Employment and

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Housing (DFEH) alleging that Cox discriminated against him on the basis of disability. The first

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was on September 14, 2012. CCC-SUF No. 3. The second and third were after this lawsuit

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began, on January 8, 2014 and March 9, 2015. CCC-SUF No. 1; Mazda Decl. Ex. L (Dkt. 53-2).

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Plaintiff brought suit in Orange County Superior Court on July 23, 2013, alleging two

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causes of action: (1) discrimination and retaliation for taking FMLA leave; and (2) disability

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discrimination in violation of the California Fair Employment and Housing Act (FEHA),

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specifically, failure to reasonably accommodate Plaintiff’s disability and failure to engage in an

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interactive process with Plaintiff. See generally Compl.

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The lawsuit was removed to federal court on February 11, 2014. Notice of Removal (Dkt.

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1). The instant Motions for Summary Judgment and Motion for Sanctions were filed on March 2

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and 5, 2015, respectively (Dkts. 48, 49, 50, 52). After briefing was completed, oral argument

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was held on April 2 (Dkt. 94).

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II. Legal Standard

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Summary judgment is proper if “the movant shows that there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a). Summary judgment is to be granted cautiously, with due respect for a party’s right to have

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its factually grounded claims and defenses tried to a jury. Celotex Corp. v. Catrett, 477 U.S.

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317, 327 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must

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view the facts and draw inferences in the manner most favorable to the non-moving party.

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United States v. Diebold, Inc., 369 U.S. 654, 655 (1992); Chevron Corp. v. Pennzoil Co., 974

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F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the

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absence of a genuine issue of material fact for trial, but it need not disprove the other party’s

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case. Celotex, 477 U.S. at 323. When the non-moving party bears the burden of proving the

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claim or defense, the moving party can meet its burden by pointing out that the non-moving

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party has failed to present any genuine issue of material fact as to an essential element of its

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case. See Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).
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Once the moving party meets its burden, the burden shifts to the opposing party to set out

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specific material facts showing a genuine issue for trial. See Liberty Lobby, 477 U.S. at 248-49.

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A “material fact” is one which “might affect the outcome of the suit under the governing law . . .

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.” Id. at 248. A party cannot create a genuine issue of material fact simply by making assertions

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in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc.,

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690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence

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identifying the basis for the dispute. Id. The court need not “comb the record” looking for other

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evidence; it is only required to consider evidence set forth in the moving and opposing papers

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and the portions of the record cited therein. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch.

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Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). The Supreme Court has held that “[t]he mere

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existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the

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jury could reasonably find for [the opposing party].” Liberty Lobby, 477 U.S. at 252.
III.

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Discussion
A. Cox Enterprises, Inc. Motion for Summary Judgment

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On March 11, 2015, the parties stipulated for Plaintiff to dismiss all claims against Cox

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Enterprises, Inc. (Dkt. 57). Accordingly, Cox Enterprises, Inc.’s Motion for Summary Judgment

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is DENIED AS MOOT.
B. Whether Cox Communications, Inc. is Plaintiff’s Employer for FMLA

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and FEHA Purposes

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Defendant Cox Communications, Inc. (“CCI”) argues that Plaintiff’s claims against CCI

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should be dismissed because CCI is not Plaintiff’s employer within the meaning of the FMLA or

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FEHA, unlike its subsidiaries Defendants CoxCom, LLC (“CoxCom”) and Cox

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Communications California, LLC (“CCC”).2

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Since Defendants do not argue that any of them lack the financial resources to pay Plaintiff should he prevail on
his claims, ordinarily the Court would not expect to see a dispute over which entity is Plaintiff’s true employer.
However, because the parties dispute whether Plaintiff properly exhausted his administrative remedies against
CoxCom and CCC, see infra, determining whether CCI is Plaintiff’s employer has taken on heightened
importance.
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The FMLA defines an employer as “any person engaged in commerce or in any industry

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or activity affecting commerce who employs 50 or more employees for each working day during

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each of 20 or more calendar workweeks in the current or preceding calendar year,” including

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“any person who acts, directly or indirectly, in the interest of an employer to any of the

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employees of such employer” and “any successor in interest of an employer.” 29 U.S.C. §

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2611(4). FEHA defines an “employer” as “any person regularly employing five or more

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persons, or any person acting as an agent of an employer, directly or indirectly . . . .” Cal. Gov’t

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Code § 12926(d). A parent corporation can be treated as a single employer with its subsidiaries

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under “integrated enterprise” or “joint employer” tests developed by the courts. Based on these

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statutory definitions, a parent corporation can also be held liable if it acted as its subsidiary’s

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agent.

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The Court will address each test in turn.
1. Integrated Enterprise Test
The integrated enterprise test is often used by federal courts and has been adopted for

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FEHA claims. The test has four factors: (1) interrelation of operations, (2) common

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management, (3) centralized control of labor relations, and (4) common ownership or financial

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control. Laird v. Capital Cities/ABC, Inc., 68 Cal. App. 4th 727, 737 (1998). To demonstrate a

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triable issue of fact on the “interrelations of operations” prong at summary judgment,

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the plaintiff must do more than merely show that officers of the subsidiary report
to the parent corporation or that the parent benefits from the subsidiary’s work.
Since these facts exist in every parent-subsidiary situation, such a showing would
create a triable issue of material fact in every case. What the plaintiff must show,
rather, is that the parent has exercised control “to a degree that exceeds the control
normally exercised by a parent corporation.”

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Id. at 738 (quoting Frank v. U.S. W., Inc., 3 F.3d 1357, 1362 (10th Cir. 1993)). To satisfy the

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centralized control of labor relations prong, often considered the most important, the parent must

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control the subsidiary’s day-to-day employment decisions, not just make broad general policy

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statements about employment matters. Id. Defendants concede that the fourth factor is met.

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However, common ownership or control alone is never enough to establish parent liability. Id. at

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738. Therefore, the Court must consider whether the first three factors have been met.

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The relevant facts are as follows:

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Plaintiff’s 2011 W-2 identified “CoxCom, Inc.” as his employer. CCC-SUF No. 12.

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CoxCom is a wholly-owned subsidiary of CCI. CCI-PAF No. 235. CoxCom was organized as a

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corporation until mid-2011, when it was reformed into CoxCom, LLC. In 2011, CoxCom owned

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and operated the cable system in Orange County where Plaintiff worked. CCC-SUF Nos. 8-9. In

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January 2012, CCC was formed as a wholly-owned subsidiary of CoxCom to hold and operate

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all CoxCom’s California cable television assets, which consist of cable systems in San Diego,

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Orange County, Palos Verde, and Santa Barbara. CCC-SUF No. 10.

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In December 2011, CCI had 89 officers and CoxCom had 56 officers. Of these, 14

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persons were simultaneously officers of both CCI and CoxCom. CCI and CoxCom also had one

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director in common at that time. CCI-SUF Nos. 10, 35. This factor weighs against finding CCI

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to be an integrated enterprise with its subsidiaries.

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CCI provides a number of services for CoxCom and CCC employees in California. Some

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are services that support local personnel. For instance, CCI has a human resources department

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that provides support for its subsidiaries’ human resources personnel. Sangston Dep. 34:17-

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35:11. CCI develops training materials and provides training in areas where CCI believes it is

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important to have consistent messaging across its subsidiaries, such as ethics. Local subsidiaries

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also develop and conduct much of their own training in areas such as product and service

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offerings, installation, and programming. Id. at 10:12-14:4, 27:14-29:8, 45:15-46:25. Similarly,

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the local subsidiaries have their own public affairs and government relations personnel, but CCI

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provides support in those areas. Id. at 35:25-36:12. CCI also provides support with email and

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records retention, IT, tax, accounting, payroll administration, marketing and sales, technology

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and engineering. Id. at 36:18-38:21.

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Some functions are maintained only at CCI. For instance, CCI interfaces with UNUM, a

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third-party vendor that administers an FMLA leave program for all Cox employees throughout

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the country. Id. at 36:13-17. CCI’s legal department functions as the legal department for all of
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its subsidiaries. CCI employs Joe Freeman, a senior employment attorney who provides legal

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advice to human resources personnel regarding CCI and CCI subsidiaries’ employees. Id. at

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10:12-14:4, 37:2-5. CCI’s legal department issues litigation holds and conducts electronic

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discovery, including in this case. Id. at 60:21-61:15.
In 2014, as part of a broad decision to take certain functions out of the local market and

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“into a center of excellence model,” CCI made the decision to close the Rancho Santa Margarita

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call center, where Plaintiff worked, and to lay off employees who had worked there. Id. at

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43:19-44:16.
These facts do not satisfy the integrated enterprise test. The most important factor is

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whether CCI and CoxCom had centralized control over employment decisions. The fact that

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local supervisors and HR personnel could consult with CCI’s HR department or legal

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department on HR issues and the fact that CCI decided to close the Rancho Santa Margarita call

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center, which by necessity meant laying off or transferring employees, do not demonstrate that

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CCI was involved in the day-to-day employment decisions of CoxCom or CCC. Nor does the

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fact that CCI, through UNUM, handled FMLA administration for its subsidiaries. Cf. Laird, 68

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Cal. App. 4th at 739 (holding that the fact that the parent corporation maintained pension plans

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and other benefits for its subsidiary’s employees was insufficient to create a triable issue of fact

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regarding interrelation of operations). The fact that local subsidiaries maintain their own HR,

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public affairs, government relations, and other staff and develop their own training and the fact

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that CCI and CoxCom’s have a few officers and directors in common, also goes against a

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finding that CCI and its subsidiaries had interrelated operations generally, as they do not show

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that CCI had a stronger degree of control than a parent normally has over a subsidiary. Thus, the

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Court concludes that Plaintiff cannot hold CCI liable under an integrated enterprise theory.
2. Joint Employer Test

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Courts have used a variety of multi-factor tests to determine whether a defendant is a

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joint employer.3 What the tests all have in common is their focus on the extent to which the

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Courts applying the joint employment test for a FEHA claim have considered factors such as:
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defendant has day-to-day control over the plaintiff’s work and over employment decisions over

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plaintiff, including hiring, firing, and rate of pay. Vernon v. State, 116 Cal. App. 4th 114, 124-

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25, 128 (2004); Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.

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1983), disapproved of on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469

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U.S. 528 (1985). The inquiry tends to be intensely fact-dependent and the ultimate determination

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is based on the totality of the circumstances; there is no magical formula. Vernon, 116 Cal. App.

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4th at 125; Bonnette, 704 F.2d at 1470.

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As the facts above demonstrate, CCI did not have day-to-day control over Plaintiff’s
employment. “Cox Communications” was listed on Plaintiff’s earning statements. However,

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CoxCom was the employer listed on Plaintiff’s 2011 W-2, which makes CoxCom the

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presumptive employer for FEHA purposes. Cal. Gov’t Code § 12928. Plaintiff was also paid

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from CoxCom’s budget. Terri Wilson Decl. ¶ 10 (Dkt. 48-3). In addition, it may be true that

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CCI made the decision to close the Rancho Santa Margarita call center in 2014; that CCI

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contracted with UNUM to administer FMLA leave; and that Joe Freeman in CCI’s legal

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department was consulted when Plaintiff was suspended. It may also be true that “Cox

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Communications” provided Plaintiff’s employee guidebook. DelGiacco Decl., Ex. D. These

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facts, however, are insufficient to show that CCI had the kind of “comprehensive and immediate

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level of ‘day-to-day’ authority over employment decisions” necessary to find that CCI was

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payment of salary or other employment benefits and Social Security taxes, the ownership of the
equipment necessary to performance of the job, the location where the work is performed, the
obligation of the defendant to train the employee, the authority of the defendant to hire, transfer,
promote, discipline or discharge the employee, the authority to establish work schedules and
assignments, the defendant’s discretion to determine the amount of compensation earned by the
employee, the skill required of the work performed and the extent to which it is done under the
direction of a supervisor, whether the work is part of the defendant’s regular business operations,
the skill required in the particular occupation, the duration of the relationship of the parties, and
the duration of the plaintiff’s employment.

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Vernon v. State, 116 Cal. App. 4th 114, 125 (2004). Courts applying the joint employment test in FLSA claims
(also applied in FMLA claims) tend to look in particular at four factors: “whether the alleged employer (1) had the
power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Bonnette
v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983), disapproved of on other grounds by
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
-12-

1

Plaintiff’s joint employer. Vernon, 116 Cal. App. 4th at 128. Plaintiff has not shown, for

2

instance, that CCI was responsible for supervising Plaintiff’s everyday work, or for making

3

specific decisions regarding his accommodations, suspension, or termination. Accordingly, the

4

Court concludes that Plaintiff cannot hold CCI liable under a joint employer theory.
3. Agency Theory

5
6

“[T]o establish a parent corporation’s liability for acts or omissions of its subsidiary on an

7

agency theory, a plaintiff must show more than mere representation of the parent by the

8

subsidiary in dealings with third persons. The showing required is that a parent corporation so

9

controls the subsidiary as to cause the subsidiary to become merely the agent or instrumentality

10

of the parent[.]” Laird, 68 Cal. App. 4th at 741 (internal quotation marks omitted) (second

11

alteration in original). Based on the record described above, there is insufficient evidence to

12

show that CoxCom was merely an agent of CCI as opposed to a separate corporate entity with

13

its own employees, budget, and operations. The Court thus concludes that Plaintiff cannot hold

14

CCI liable under an agency theory.
4. Conclusion

15
16

In summary, Plaintiff does not have sufficient evidence to show that CCI was his

17

employer for FEHA or FMLA purposes. Accordingly, the Court GRANTS CCI’s Motion for

18

Summary Judgment.
C. FMLA Claim

19
20

Defendants argue that Plaintiff’s FMLA claim should fail as a matter of law because

21

Plaintiff cannot prove that his taking FMLA leave was a negative factor in the decision to

22

suspend him.

23

The FMLA entitles “employees to take reasonable leave for medical reasons, or the birth

24

or adoption of a child, and for the care of a child, spouse, or parent who has a serious health

25

condition.” 29 U.S.C. § 2601(b). The Act permits an employee to take up to twelve weeks of

26

leave during a twelve-month period. Id. § 2612. The Act makes it “unlawful for an employer to

27

interfere with, restrain, or deny the exercise of or the attempt to exercise” an employee’s rights

28

under the FMLA. 29 U.S.C. § 2615(a)(1). “Interference” includes the “us[ing] the taking of
-13-

1

FMLA leave as a negative factor in employment actions, such as hiring, promotions or

2

disciplinary actions.” 29 C.F.R. § 825.220(c).

3

The Ninth Circuit has held that the familiar McDonnell-Douglas burden-shifting

4

framework often used in discrimination cases does not apply to FMLA interference cases. Thus,

5

a plaintiff does not need to prove that the employer’s stated non-discriminatory reason for taking

6

action against him or her was pretextual. Instead, a plaintiff “need only prove by a

7

preponderance of the evidence that her taking of FMLA-protected leave constituted a negative

8

factor in the decision to terminate her. She can prove this claim, as one might any ordinary

9

statutory claim, by using either direct or circumstantial evidence, or both.” Bachelder v. Am. W.

10

Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) (emphasis added). Here, to survive summary

11

judgment, Plaintiff must show that there is a “triable issue of material fact on whether [his

12

employer] considered [his] FMLA qualified leave as a factor in [his suspension], thus causing

13

interference with [his] rights under FMLA.” Xin Liu v. Amway Corp., 347 F.3d 1125, 1137 (9th

14

Cir. 2003).

15

Defendants argue that mishandling calls was a legitimate business reason for suspending

16

Plaintiff and that Plaintiff does not have sufficient evidence to prove that Cox’s reason was

17

pretextual. However, as the Ninth Circuit has explained, “there is no room for a McDonnell

18

Douglas type of pretext analysis when evaluating an ‘interference’ claim under [the FMLA].”

19

Bachelder, 259 F.3d at 1131. “[T]he regulations clearly prohibit the use of FMLA-protected

20

leave as a negative factor at all.” Id. Thus, “[t]he question . . . is not whether [Cox] had

21

additional reasons for the discharge, but whether [Plaintiff’s] taking of . . . FMLA-protected

22

leave was used as a negative factor in [his] discharge.” Id.

23

Here, there is a triable issue of material fact as to whether Plaintiff’s intermittent FMLA

24

leave in November 2011 was a negative factor in Plaintiff’s employer’s decision to suspend him.

25

His intermittent leave took place close in time to his suspension, which “provides supporting

26

evidence of a connection between the two events.” Xin Liu, 347 F.3d at 1137; see also Levine v.

27

TERROS, Inc., No. CV08-1458-PHX-MHM, 2010 WL 864498, at *8 (D. Ariz. Mar. 9, 2010)

28

(denying summary judgment based on temporal proximity). Plaintiff’s employer was aware that
-14-

1

Plaintiff had taken FMLA leave within the last year to care for his wife and that there had been

2

“numerous issues” regarding the tracking of his leave, “[t]o the point when it almost became a

3

legal situation.” Terri Wilson Dep. Ex. 41 (Dkt. 53-2) (July 6, 2011 email from Chona Boretti to

4

another employee describing Plaintiff’s “history”). There is evidence that Plaintiff performed

5

well at his job for the previous two years based on his supervisor Erica Wilson’s deposition

6

testimony. He received a positive review from Wilson on October 24, 2011, only a few weeks

7

before he was suspended for allegedly mishandling calls. Erica Wilson Dep. 162:2-166:15; Terri

8

Wilson Dep. 505:13-20, 510:6-24, 520:14-521:12, Ex. 96. Also, while Defendants claim that

9

Plaintiff mishandled calls, Plaintiff states in his declaration that he “never intentionally hung up

10

on a customer while [he] worked at Cox.” DelGiacco Decl. ¶ 31. The evidence supporting

11

Defendants’ story that Plaintiff was suspended because of mishandling calls may make it less

12

likely that a jury will find that Plaintiff’s intermittent FMLA leave was a factor in Defendants’

13

decision. However, reading Plaintiff’s evidence in the light most favorable to him, he has

14

produced sufficient evidence for a rational jury to find that his FMLA leave was a negative

15

factor.

16
17
18

Accordingly, the Court DENIES summary judgment on Plaintiff’s FMLA claims.
D. FMLA Punitive and Emotional Distress Damages
Defendants argue that Plaintiff is not entitled to punitive and emotional distress damages

19

for his FMLA claim because the FMLA does not allow for such damages. The Court agrees. See

20

Farrell v. Tri-Cnty. Metro. Transp. Dist. of Oregon, 530 F.3d 1023, 1025 (9th Cir. 2008).

21

Accordingly, the Court DISMISSES Plaintiff’s request for punitive and emotional distress

22

damages for his FMLA claim.

23

E. Administrative Exhaustion of Plaintiff’s FEHA Claims

24

California Government Code § 12960 “provides that an employee bringing an FEHA

25

claim must exhaust the administrative remedy by filing an administrative complaint with the

26

DFEH . . . .” Acuna v. San Diego Gas & Elec. Co., 217 Cal. App. 4th 1402, 1412 (2013). A

27

plaintiff cannot sue in court until the DFEH issues a right-to-sue notice. See Cal. Gov’t Code §

28

-15-

1

12965(b) (providing that the right-to-sue notice “shall indicate that the person claiming to be

2

aggrieved may bring a civil action”).

3

Defendants raise a number of arguments why Plaintiff’s FEHA claims should be barred

4

for failure to exhaust his administrative remedies. These arguments fall into three major

5

categories: (1) Plaintiff’s 2012 DFEH complaint did not describe the facts with sufficient

6

particularity; (2) Plaintiff’s 2012 DFEH complaint did not name the correct employers; and (3)

7

Plaintiff’s DFEH complaints were filed too late. The Court addresses each argument in turn.
1. Factual Particularity of 2012 DFEH Complaint

8
9

Defendants argue that Plaintiff’s September 14, 2012 DFEH complaint did not describe

10

the facts or the nature of the FEHA violation with sufficient particularity. In his 2012 DFEH

11

complaint, Plaintiff stated that, on or before December 6, 2011, “Cox Enterprises, Inc. and Cox

12

Communications, Inc. [collectively “Cox”] discriminated against me because of my disability

13

and my age. Cox also failed to accommodate my disability. Cox also interfered with my rights

14

to take FMLA and CFRA leave, and then retaliated against me for taking an FMLA leave.”

15

CCC-SUF No. 4.

16

It is true that California Government Code § 12960(b) requires the administrative

17

complaint to “set forth the particulars” of the alleged unlawful practice. If the 2012 DFEH

18

complaint was a court pleading being evaluated under the Iqbal/Twombly standard, Defendants

19

may have a good argument that the complaint is overly vague and conclusory, such that Plaintiff

20

should not be allowed to proceed. However, Defendants have not provided any binding legal

21

authority for the proposition that a court can or should deny a plaintiff access to the courts based

22

on a factually vague DFEH complaint where the DFEH has already issued a right-to-sue letter.

23

This is not a case in which plaintiff is suing on a different theory than he alleged in his DFEH

24

complaint. See Hobson v. Raychem Corp., 73 Cal. App. 4th 614, 631 (1999), disapproved of on

25

other grounds by Colmenares v. Braemar Country Club, Inc., 29 Cal. 4th 1019 (2003)

26

(dismissing disability discrimination claim based on depression, stress, and alcoholism where

27

the plaintiff’s DFEH complaint mentioned only colitis). Rather, Defendants’ objection is limited

28

to the lack of particularity in the DFEH complaint allegations.
-16-

1

It may be true that a vague DFEH complaint impedes the employer’s and the DFEH’s

2

ability to investigate and thus goes against FEHA’s purpose of encouraging alternate resolutions

3

before a dispute is brought to court. See Rojo v. Kliger, 52 Cal. 3d 65, 83 (1990) (“[T]he

4

exhaustion requirement serves the important policy interests embodied in the act of resolving

5

disputes and eliminating unlawful employment practices by conciliation . . . as well as the

6

salutory goals of easing the burden on the court system, maximizing the use of administrative

7

agency expertise and capability to order and monitor corrective measures, and providing a more

8

economical and less formal means of resolving the dispute.”). It was on this basis that the court

9

in Foster v. Bank of Am., Nat. Ass’n, No. 1:13-CV-1188-LJO-BAM, 2014 WL 4092311 (E.D.

10

Cal. Aug. 14, 2014), a case cited by Defendants, held that a plaintiff who had alleged no specific

11

facts about her employer’s conduct against her could not bring certain FEHA claims against her

12

employer because she had failed to exhaust her administrative remedies.

13

This Court, however, believes that policy concerns about enforcing California

14

Government Code § 12960(b) are better addressed to DFEH or the state legislature. In recent

15

years, DFEH has adopted a policy of issuing right-to-sue letters as a matter of course without

16

reviewing administrative complaints in much detail. See Cal. Code Regs. tit. 2, § 10005

17

(allowing complainants to waive investigation by DFEH in favor of obtaining an immediate

18

right-to-sue notice). Thus, in many cases, there is no real administrative investigatory or

19

conciliatory process anymore. If the DFEH’s practice is not to investigate, it does not make

20

sense for the Court to bar litigants from court for failing to give DFEH enough detail to

21

investigate. As long as the complaint initiating the lawsuit is sufficiently detailed, the employer

22

is still able to investigate and nothing prevents the parties from reaching an out-of-court

23

settlement even during the course of litigation. Thus, so long as a plaintiff’s DFEH complaint

24

identifies the discrimination alleged in the lawsuit, he has filed his DFEH complaint within the

25

statute of limitations, and he has obtained a right-to-sue notice, the Court is not concerned with

26

the level of factual specificity in the DFEH complaint in evaluating whether the plaintiff has

27

exhausted his administrative remedies.

28

-17-

1
2
3
4

Accordingly, the Court will not dismiss Plaintiff’s FEHA claims based on the vagueness
of his DFEH complaint.
2. Employers Named in 2012 DFEH Complaint
Defendants argue that Plaintiff’s FEHA claims against CCC and CoxCom should be

5

barred because Plaintiff’s September 14, 2012 DFEH complaint did not name them as

6

respondents and the 2014 and 2015 DFEH complaints, which did name them as respondents,

7

were untimely. The Court disagrees.

8

With regard to the first argument, a FEHA plaintiff must exhaust his administrative

9

remedies against each party against whom he wishes to bring suit. Each defendant of the lawsuit

10

must be identified in the caption or body of the plaintiff’s administrative complaint. Cole v.

11

Antelope Valley Union High Sch. Dist., 47 Cal. App. 4th 1505, 1509-10 (1996). Here, the 2012

12

DFEH complaint named “Cox Communications, Inc.” and “Cox Enterprises, Inc.” as

13

respondents. The body of the complaint refers to these two entities as “collectively ‘Cox.’”

14

Defendants fault Plaintiff for failing to list CoxCom as a respondent, given that Plaintiff’s 2011

15

W-2 identified “CoxCom, Inc.” as his employer. CCC-SUF No. 12. Under California

16

Government Code § 12928, “there is a rebuttable presumption that ‘employer’ . . . includes any

17

person or entity identified on the employee’s [W-2].” However, given that CoxCom, Inc. was re-

18

organized into CoxCom, LLC just a year before the 2012 DFEH complaint was filed and given

19

that all of Plaintiff’s employment-related paperwork except his W-2 referenced “Cox

20

Communications” and “Cox Enterprises” rather than “CoxCom,” it was understandable that

21

Plaintiff mistakenly listed “Cox Communications, Inc.” as opposed to “CoxCom, Inc.” In any

22

event, the body of the complaint refers to “Cox” as a collective entity and Plaintiff promptly

23

filed a second DFEH complaint against CCI, CEI, CoxCom, CCC and “any other entity named

24

‘Cox’ that employed Dave DelGiacco” in January 2014, once defense counsel notified him that

25

CoxCom and CCC were DelGiacco’s employers. Mazda Decl. ¶ 11, Ex. K. In addition,

26

Defendants admit that CCI’s legal department serves all of CCI’s subsidiaries, including

27

CoxCom, Sangston Dep. 37:2-5, and the record shows that the legal department received notice

28

of the 2012 DFEH complaint. Mazda Decl., Exs. N-P (Dkt. 54-2). Thus, Defendants cannot be
-18-

1

heard to complain that they did not receive adequate notice of Plaintiff’s claims, regardless of

2

which Cox entity technically employed him.

3

Given the circumstances, the Court accepts the reference to “Cox” and “Cox

4

Communications” in the 2012 DFEH complaint as sufficiently broad to include CoxCom and

5

CCC. In light of FEHA’s remedial purpose, punishing Plaintiff with a narrow reading of “Cox”

6

and “Cox Communications” would lead to an inequitable result, especially given the fact that all

7

of the Cox entities received actual notice of his 2012 DFEH complaint. See Elkins v. Derby, 12

8

Cal. 3d 410, 414 (1974) (“[R]egardless of whether the exhaustion of one remedy is a

9

prerequisite to the pursuit of another, if the defendant is not prejudiced thereby, the running of

10

the limitations period is tolled (w)hen an injured person has several legal remedies and,

11

reasonably and in good faith, pursues one.”), cited with approval in McDonald v. Antelope

12

Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 102 (2008) (approving of equitable tolling of FEHA

13

statute of limitations when tolling would support the legislative purposes behind FEHA); cf. Cal.

14

Gov’t Code § 12960(d)(2) (extending the statute of limitations period for filing a DFEH

15

complaint if the complainant later discovers that his or her employer is actually someone other

16

than the entity listed on the W-2).

17

Because the Court concludes that the 2012 DFEH complaint named CCC and CoxCom,

18

the Court does not address the parties’ additional arguments about whether the continuing

19

violation doctrine saves Plaintiff’s 2014 and 2015 DFEH complaints from the one-year statute

20

of limitations.

21

3. Timeliness of 2012 DFEH Complaint

22

Defendants argue that Plaintiff’s FEHA claims are time-barred to the extent that they rely

23

on events occurring before September 14, 2011. Plaintiff argues that his DFEH complaints were

24

timely filed under the continuing violation doctrine.

25

Generally, the administrative complaint must be filed within one year of the alleged

26

unlawful practice. Cal. Gov’t Code § 12960(d). Some statutory exceptions apply. For instance,

27

the one-year period can be extended “[f]or a period of time not to exceed one year following a

28

rebutted presumption of the identity of the person’s employer under Section 12928, in order to
-19-

1

allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of

2

the actual employer.” Id. § 12960(d). Additionally, the continuing violation doctrine allows for a

3

plaintiff to hold a defendant liable for acts of discrimination that fall outside of the one-year

4

statute of limitations if “it is sufficiently connected to unlawful conduct within the limitations

5

period.” Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 802 (2001). It requires that: (1) the

6

actions inside and outside the limitations period be sufficiently similar in kind; (2) they occur

7

with sufficient frequency; and (3) they not have acquired a degree of “permanence.” Id. For

8

example, “when an employer engages in a continuing course of unlawful conduct under the

9

FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability

10

harassment . . . the statute of limitations begins to run . . . either when the course of conduct is

11

brought to an end, as by the employer’s cessation of such conduct or by the employee’s

12

resignation, or when the employee is on notice that further efforts to end the unlawful conduct

13

will be in vain.” Id. at 823-24.

14

Here, Plaintiff claims to have sought accommodations related to testing his blood sugar

15

levels throughout 2011, including in November 2011 when he asked his supervisor Mariza

16

Garcia if there was a private area where he could test his blood sugar levels. Erica Wilson Dep.

17

39:11-42:8, CCC-SUF Nos. 63-67, 84, 88. The parties also dispute whether Cox ever required to

18

take intermittent FMLA leave as an accommodation and whether he was even eligible to take

19

FMLA leave before November 2011. Plaintiff allegedly did not actually start taking intermittent

20

FMLA leave until November 2011. DelGiacco Decl. ¶ 24. Thus, a triable issue of material fact

21

exists as to whether Plaintiff’s September 14, 2012 DFEH complaint was timely filed under the

22

continuing violations doctrine.

23
24

Accordingly, the Court DENIES Defendants’ Motion for Summary Judgment as to
Plaintiff’s FEHA claims on this basis.

25
26
27
28

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1
2
3

F. FEHA Failure to Provide a Reasonable Accommodation and Failure to
Engage in Interactive Process Claims
Plaintiff alleges that his employers violated FEHA by failing to provide reasonable

4

accommodations related to his need to check his blood sugar levels to manage his diabetes and

5

by suspending him.

6
7

1. Legal Standard
FEHA makes it unlawful for an employer “to bar or to discharge the person from

8

employment . . . or to discriminate against the person in compensation or in terms, conditions, or

9

privileges of employment” based on the person’s disability. Cal. Gov’t Code § 12940(a).

10

FEHA separately requires employers to make reasonable accommodations for “known

11

physical or mental disabilit[ies] of an . . . employee.” Id. § 12940(m). Courts have interpreted

12

“reasonable accommodation” within the meaning of FEHA as “a modification or adjustment to

13

the workplace that enables the employee to perform the essential functions of the job held or

14

desired.” Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 974 (2008). The

15

statute itself provides examples of reasonable accommodations, such as

16
17
18
19
20

(1) Making existing facilities used by employees readily accessible to, and usable
by, individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, adjustment
or modifications of examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar accommodations for individuals
with disabilities.

21
22

Cal. Gov’t Code § 12926(p). When an employee needs time away from the job for treatment or

23

recovery, allowing the employee to take leave or extending leave may be a reasonable

24

accommodation if “the leave is likely to be effective in allowing the employee to return to work

25

at the end of the leave, with or without further reasonable accommodation, and does not create

26

an undue hardship for the employer.” Cal. Code Regs. tit. 2, § 11068(c). However, if “an

27

employee can work with a reasonable accommodation other than a leave of absence, an

28

-21-

1

employer may not require that the employee take a leave of absence.” Id. When multiple

2

accommodations are potentially available,

3
4
5
6
7

[a]n employer . . . is required to consider any and all reasonable accommodations
of which it is aware or which are brought to its attention by the applicant or
employee, except ones that create an undue hardship. The employer . . . shall
consider the preference of the applicant or employee to be accommodated, but has
the right to select and implement an accommodation that is effective for both the
employee and the employer . . . .

8
9
10

Id. § 11068(e).
FEHA also requires employers “to engage in a timely, good faith, interactive process

11

with the employee . . . to determine effective reasonable accommodations, if any, in response to

12

a request for reasonable accommodation by an employee . . . with a known physical or mental

13

disability or known medical condition.” Cal. Gov’t Code § 12940(n).

14
15
16
17
18
19
20

Typically, an applicant or employee triggers the employer’s obligation to
participate in the interactive process by requesting an accommodation. (§ 12940,
subd. (n).) Although it is the employee’s burden to initiate the process, no magic
words are necessary, and the obligation arises once the employer becomes aware
of the need to consider an accommodation. Each party must participate in good
faith, undertake reasonable efforts to communicate its concerns, and make
available to the other information which is available, or more accessible, to one
party. Liability hinges on the objective circumstances surrounding the parties’
breakdown in communication, and responsibility for the breakdown lies with the
party who fails to participate in good faith.

21
22
23
24

Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 62 (2006).
2. Analysis
Defendants make two main arguments why Plaintiff’s failure to reasonably accommodate

25

and failure to engage in the interactive process claims should fail: (1) Plaintiff did not make

26

clear in 2011 why he needed the accommodations he wanted; and (2) Plaintiff still has not

27

demonstrated today that those accommodations were necessary and reasonable. The Court will

28

address each argument in turn.
-22-

1

Defendants’ first argument is that they were never properly notified of what specific

2

limitations necessitated the three accommodations requested by Plaintiff. The Court disagrees.

3

Here, Plaintiff’s supervisor Erica Wilson drove him to the hospital in April 2011 when Plaintiff

4

had a diabetic episode. CCC-PAF No. 6. Plaintiff asked Wilson for a specific “medical” code

5

that would allow him to log off the phone system to monitor his blood sugar and manage his

6

diabetes without adversely affecting his job performance record. Erica Wilson Dep. 39:11-

7

41:10. He told Wilson and HR representative Chona Boretti that he needed to be able to stand up

8

and walk around during the workday because of his neuropathy. CCC-SUF No. 63-64, 66. In

9

November 2011, he asked his new supervisor Mariza Garcia about getting access to a private

10

place where he could check his glucose levels. CCC-SUF No. 88. Emails being exchanged

11

between HR personnel and Plaintiff’s managers show that they were aware that Plaintiff needed

12

to check his blood sugar levels during the workday and that he was asking for a place other than

13

his desk or car where he could do so. Terri Wilson Dep. Ex. 48 (Dkt. 49-3). Under the “no

14

magic words” standard, these circumstances are enough to make an employer aware that

15

Plaintiff had disability-related work limitations and that the employer should begin engaging in

16

the interactive process of identifying a suitable accommodation. Thus, Plaintiff has raised a

17

genuine dispute of material fact as to whether Defendants were aware of his limitations.

18

There are also triable issues of material fact regarding who broke off the interactive

19

process first. Defendants claim that Plaintiff never provided medical documentation of specific

20

restrictions requiring additional breaks or a private place to test his blood sugar levels. However,

21

it is not clear that Cox ever asked Plaintiff to provide documentation in response to these

22

specific requests, although HR representative Chona Boretti did ask Plaintiff for medical

23

documentation regarding his standing/walking around request. Plaintiff claims that he did

24

provide documentation to his employer’s FMLA administrator even though an earlier instruction

25

by Boretti that he should not name his specific medical condition due to Health Insurance

26

Portability and Accountability Act (HIPAA) privacy concerns made him think that perhaps she

27

did not want medical documentation. DelGiacco Decl. ¶ 24. With regard to the request for a

28

“medical” code, Plaintiff asserts that he was told he had to use intermittent FMLA leave even
-23-

1

though he had already used up all of his FMLA leave for that year to take care of his wife when

2

she was ill with cancer. DelGiacco Decl. ¶¶ 10, 12. Defendants claim that HR representative

3

Boretti never told him that. Boretti Decl. ¶ 7 (Dkt. 49-3). With regard to the request for a private

4

room, Defendants claim that Plaintiff’s supervisor Mariza Garcia told him he could use an

5

empty office or a locking men’s room. Garcia Decl. ¶ 10. Plaintiff claims that no one ever got

6

back to him. DelGiacco Decl. ¶ 9. Because triable issues of material fact abound, summary

7

judgment cannot be granted on Plaintiff’s interactive process claim.

8
9

Defendants’ second argument is that Plaintiff’s claims fail because, even after going
through the litigation process, he still has not identified a reasonable accommodation to which

10

he was entitled at the time. If Plaintiff was not entitled to the accommodations he asked for

11

because they were not “reasonable,” then Defendants cannot be held liable for failure to provide

12

a reasonable accommodation. Defendants argue that, if Plaintiff cannot identify a reasonable

13

accommodation, then he also cannot prevail on his interactive process claim. The Court agrees.

14

The California courts are split on whether an employer can still be held liable for failure

15

to engage in the interactive process even if it turns out that no reasonable accommodation was

16

available. In Wysinger v. Auto. Club of S. California, 157 Cal. App. 4th 413 (2007), a manager

17

of the Auto Club’s Santa Barbara office wanted to be reassigned to Ventura because his daily

18

commute to Santa Barbara aggravated his arthritis. The jury found that the employer did not fail

19

to provide a reasonable accommodation, but the employer did fail to engage in the interactive

20

process. The court upheld the jury verdict, stating that “the jury could find there was no failure

21

to provide a required accommodation because the parties never reached the stage of deciding

22

which accommodation was required. [The employer] prevented this from happening by its

23

refusal to engage in the interactive process.” Id. at 425. This result suggests that an employer

24

can be held liable for failure to interact even if no reasonable accommodation was required. The

25

court in Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952 (2008), on the other

26

hand, held that an employer can be held liable for failure to engage in the interactive process

27

only if a reasonable accommodation was possible, id. at 980-83, and that “the burden of proving

28

the availability of a reasonable accommodation rests on the employee.” Id. at 984.
-24-

1

Scotch v. Art Inst. of California-Orange Cnty., Inc., 173 Cal. App. 4th 986 (2009),

2

reconciled Wysinger, Nadaf-Rahrov, and other cases thus: “[D]uring the interactive process

3

itself the employee does not have the same access to information about possible

4

accommodations as the employer does. But . . . through the litigation process, including

5

discovery, the employee must be able to identify a reasonable accommodation that would have

6

been available during the interactive process” in order to prevail on a failure to engage in

7

interactive process claim. Id. at 1018. The Court finds this reasoning persuasive because it

8

incentivizes employers to provide information about potential reasonable accommodations

9

during the interactive process (since that information will come out in discovery anyway) and it

10

gives employees leverage to hold employers accountable to their obligation to engage in the

11

interactive process without burdening employees with the responsibility to articulate reasonable

12

accommodations before they gain access to information in the employer’s possession. See id.

13

(“An employee cannot necessarily be expected to identify and request all possible

14

accommodations during the interactive process itself because [e]mployees do not have at their

15

disposal the extensive information concerning possible alternative positions or possible

16

accommodations which employers have . . .”) (internal quotation marks omitted) (alteration in

17

original). Thus, this Court holds that Plaintiff cannot prevail on his failure to engage in

18

interactive process claim unless he can show that a reasonable accommodation was available at

19

the time.

20

Here, Defendants argue that unlimited breaks were not a reasonable accommodation

21

because an essential function of Plaintiff’s job was to be at his desk answering the phone. To the

22

extent that Plaintiff’s request for a “medical” code was a request to be paid for doing no work,

23

that would be unreasonable. However, reading the evidence in the light most favorable to him,

24

Plaintiff likely simply wanted permission to take more breaks than he normally received, within

25

some reasonable limit. Defendants further argue that Plaintiff did not need additional breaks to

26

check his blood sugar levels because he already had sufficient regular break times and flexibility

27

to take additional breaks during his shifts. What constitutes a reasonable accommodation is a

28

question of fact. Lujan v. Pac. Mar. Ass’n, 165 F.3d 738, 743 (9th Cir. 1999). Since there are
-25-

1

genuine disputes of fact as to what Plaintiff’s limitations actually were and what Defendants

2

knew about Plaintiff’s limitations, the Court cannot find that Plaintiff’s requested

3

accommodations were per se unreasonable. Thus, the Court will leave the question of

4

reasonableness to the jury.

5
6
7
8
9

Accordingly, the Court DENIES Defendants’ Motion for Summary Judgment as to
Plaintiff’s failure to accommodate and failure to engage in an interactive process FEHA claims.
G. FEHA Punitive Damages
Defendants argue that Plaintiff is not entitled to punitive damages on his FEHA claim
because (1) Defendants did not act with malice by making routine, ordinary business decisions

10

and (2) none of the individuals making decisions regarding Plaintiff’s requests for

11

accommodations were “managing agents” of CoxCom or CCC.

12
13

1. Legal Standard
In order to obtain punitive damages for his FEHA claims against his corporate employer,

14

Plaintiff must show by clear and convincing evidence that an officer, director, or managing

15

agent of the corporation “had advance knowledge of the unfitness of the employee and

16

employed him or her with a conscious disregard of the rights or safety of others or authorized or

17

ratified the wrongful conduct for which the damages are awarded or was personally guilty of

18

oppression, fraud, or malice.” Cal. Civ. Code § 3294(a)-(b). “Malice” is defined as “conduct

19

which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is

20

carried on by the defendant with a willful and conscious disregard of the rights or safety of

21

others.” Cal. Civ. Code § 3294(c)(1).

22

The California Supreme Court has interpreted the term “managing agent” “to include

23

only those corporate employees who exercise substantial independent authority and judgment in

24

their corporate decisionmaking so that their decisions ultimately determine corporate policy.”

25

White v. Ultramar, Inc., 21 Cal. 4th 563, 566-67 (1999). “Corporate policy” refers to “formal

26

policies that affect a substantial portion of the company and that are the type likely to come to

27

the attention of corporate leadership.” Roby v. McKesson Corp., 47 Cal. 4th 686, 715 (2009).

28

The ability to hire and fire other employees is not sufficient by itself to make someone a
-26-

1

managing agent. White, 21 Cal. 4th at 577. “The scope of a corporate employee’s discretion and

2

authority under [the White] test is . . . a question of fact for decision on a case-by-case basis.” Id.

3

at 567.

4

“For purposes of determining an employer’s liability for punitive damages, ratification

5

generally occurs where, under the particular circumstances, the employer demonstrates an intent

6

to adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the

7

performance of his job duties.” Coll. Hosp. Inc. v. Superior Court, 8 Cal. 4th 704, 726 (1994).

8

“Corporate ratification in the punitive damages context requires actual knowledge of the conduct

9

and its outrageous nature.” Id.
2. Analysis

10

a. Scope of Plaintiff’s FEHA Claims

11
12

Some of the higher-level Cox employees who could potentially be managing agents only

13

knew about some but not all of the actions that lower-level employees took with respect to

14

Plaintiff’s requests for accommodations and suspension. Thus, as a preliminary matter, the

15

Court must ascertain what is within the scope of Plaintiff’s FEHA claims. Based on the parties’

16

briefing and oral arguments, there appear to be four potential actions or omissions at issue: (1)

17

not providing a “medical” code that Plaintiff could use to take additional breaks without

18

negative consequences; (2) not allowing him flexibility to stand and walk around instead of sit at

19

his desk; (3) not providing a private, sanitary place where he could check his blood sugar levels;

20

and (4) stopping him from taking the accommodation of intermittent FMLA leave by

21

suspending him.

22
23

Defendants argue that Plaintiff did not plead any of these failures except the first one in
his complaint. This is not quite accurate. The complaint states:

24
25
26
27
28

Mr. DelGiacco repeatedly asked about obtaining a reasonable accommodation for
checking his blood sugar levels at work to avoid any episodic reactions. He also
inquired about a code that he could use to log off the phone system so that he
could check his sugar levels throughout his shift. Cox had accommodated similar
requests from employees in Mr. DelGiacco’s same position who were pregnant or
who were breast feeding. However, Cox consistently and repeatedly denied Mr.
-27-

DelGiacco any type of reasonable accommodation so that he could check his
blood sugar (a procedure that only takes a few minutes to conduct).

1
2
3

Compl. ¶ 13. Although the complaint does not provide specific accommodations Plaintiff asked

4

for besides the “medical” code, the complaint is clear that he did ask for other types of

5

accommodations. Plaintiff testified in his deposition and emails were produced during discovery

6

showing that he asked for permission to walk around to improve blood circulation in his legs.

7

See supra Part I.A.2.b. His testimony and emails also revealed that he asked for a private space

8

in which to test his blood sugar levels. Defendants themselves recognized that these issues were

9

raised during discovery, as they brought up these issues in their statement of uncontroverted

10

facts accompanying CCC’s and CoxCom’s motion for summary judgment. See CCC-SUF Nos.

11

63-92.

12

The Ninth Circuit held in Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th Cir.

13

2006), that a district court need not address allegations raised for the first time after the close of

14

discovery and in response to a motion for summary judgment if the plaintiff’s pleadings did not

15

provide sufficient notice of those allegations. Id. at 965. Here, however, Plaintiff’s complaint did

16

provide notice that Plaintiff’s FEHA claim was factually based on more than the “medical” code

17

request and those issues were explored in discovery, as demonstrated by Defendants (not

18

Plaintiff) being the first to raise them at the summary judgment stage. Since Defendants do not

19

and could not claim that they were prejudiced by lack of time to develop their defenses, the

20

Court is not persuaded that Plaintiff’s failure to plead his standing/walking and private room

21

requests with greater particularity at the start of the case should, alone, preclude him from

22

raising those issues at trial. This is particularly so in light of the fact that Rule 15(b) allows

23

amendment of pleadings to conform to the evidence even during and after trial, so long as the

24

other party is not prejudiced.

25

The analysis of Plaintiff’s suspension is a little different. Plaintiff argues that his

26

suspension was a failure to provide a reasonable accommodation under § 12940(m) because his

27

suspension cut off his ability to take intermittent FMLA leave. However, Plaintiff has provided

28

no legal authority for this theory. The Court has considered that the suspension could be
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1

interpreted as Defendants forcing Plaintiff to take a full-time leave of absence even though he

2

could work with another reasonable accommodation, such as intermittent leave. FEHA

3

regulations provide that, if “an employee can work with a reasonable accommodation other than

4

a leave of absence, an employer may not require that the employee take a leave of absence.” Cal.

5

Code Regs. tit. 2, § 11068(c). Section 11068(c), however, addresses what an employer should

6

do when deciding between a leave of absence and other forms of accommodation; it is not a

7

prohibition against employers suspending employees. There is no evidence here that Defendants

8

thought of the suspension as a potential way to accommodate Plaintiff’s diabetes. Thus,

9

Plaintiff’s suspension theory fails under § 12940(m).
It seems to this Court that the suspension could more viably support a cause of action

10
11

under California Government Code § 12940(a), which prohibits discrimination in the terms and

12

conditions of employment, as opposed to causes of action under §§ 12940(m) or (n), which

13

require employers to provide reasonable accommodations and to engage in an interactive

14

process to identify reasonable accommodations. However, Plaintiff has not explicitly pled a

15

cause of action under § 12940(a), nor has Plaintiff requested that the Court grant leave to amend

16

the complaint to plead such a cause of action or that the Court consider at the summary

17

judgment stage whether Plaintiff may be entitled to relief under § 12940(a).4 Thus, the Court

18

will not sua sponte construe Plaintiff’s suspension-as-a-failure-to-accommodate theory as a

19

request to consider his entitlement to relief under § 12940(a).
Accordingly, the Court considers Plaintiff’s FEHA claims limited at this stage to the first

20
21

three omissions, not including Plaintiff’s suspension.

22
4

23
24
25
26
27
28

Rule 8 requires the plaintiff to plead facts supporting claims for relief, not causes of action, statutes or legal
theories. Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008). “Even when the plaintiff is represented by counsel,
and counsel initially misconceived the proper legal theory of the claim,” plaintiff can prevail on summary
judgment if the plaintiff is entitled to relief on some other legal theory and requests such relief in opposing
summary judgment. Id. at 1158 (internal quotation marks omitted); see also Crull v. GEM Ins. Co., 58 F.3d 1386,
1391 (9th Cir. 1995) (holding that district court erred in granting summary judgment to defendant after holding
that plaintiffs’ state law claims were preempted by ERISA even though plaintiffs’ had asked in their opposition to
defendants’ summary judgment motion that the court consider whether plaintiffs were entitled to relief under
ERISA in the event that their state law claims were preempted). Here, unlike the plaintiffs in Alvarez and Crull,
Plaintiff has not articulated or argued a § 12940(a) theory even at the summary judgment stage. Rather, Plaintiff
has insisted that his suspension is failure to accommodate under § 12940(m), which the Court has held is not a
viable legal theory.
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b. Relevant Facts

1
2

The Court now considers whether summary judgment on FEHA punitive damages is

3

appropriate. The following persons occupied the following roles within Cox and played the

4

following roles in decisions regarding Plaintiff’s requested accommodations and suspension:

5

Plaintiff’s immediate supervisors were first Erica Wilson and then Mariza Garcia. They

6

supervised a team of 13 retention representatives. Their authority to impose discipline and make

7

personnel decisions was limited to the roughly 13 members of their employee teams. CCC-SUF

8

Nos. 97. Wilson knew about Plaintiff’s diabetes and spoke to him about his need for

9

accommodations. She allegedly failed to provide him the “medical” code that he asked for.

10

Garcia also knew about Plaintiff’s diabetes because Plaintiff asked her for a private space where

11

he could check his glucose levels. Garcia allegedly failed to respond to Plaintiff’s request.

12

Garcia and her supervisor Jessica Allsopp were the ones who first listened to the tapes where

13

Plaintiff allegedly mishandled calls. Garcia, Allsopp, and HR representative Chona Boretti

14

attended the December 7, 2011 meeting where they informed Plaintiff he was being suspended.

15

HR representative Chona Boretti communicated with Plaintiff about his need for

16

accommodations for his diabetes, in particular his standing/walking request. She participated in

17

email chains about his request for a private room. She was aware that his previous experience

18

with Cox’s FMLA administrator had almost led to legal problems. Boretti did not supervise

19

anyone as part of her work at Cox, nor did she develop human resources policies for Cox. CCC-

20

SUF Nos. 99-100.

21

Jessica Allsopp was Erica Wilson’s and then Garcia’s supervisor. In 2011, Allsopp

22

supervised between 50-150 employees. CCC-PAF No. 201. There is some evidence that she was

23

involved in granting Plaintiff intermittent FMLA leave. Terri Wilson Dep. 101:3-102:20. She

24

participated in email chains discussing his request for a private space to test his blood sugar. Id.

25

Ex. 47, 48. She and Garcia were the ones who initially discovered the tapes of Plaintiff allegedly

26

mishandling calls. She participated in the decision to suspend and terminate Plaintiff.

27
28

Allsopp’s boss in 2011 was Pablo Pareja, director of sales and retention. Terri Wilson
Decl. ¶ 3. He was notified about the mishandled calls when Allsopp discovered them. He
-30-

1

participated in the decision in December 2011 to suspend and terminate Plaintiff. Terri Wilson

2

Dep. 273:3-274:6; Terri Wilson Decl. ¶ 6.

3

In 2011, Terri Wilson was Boretti’s supervisor. CCC-SUF No. 23; CCC-PAF No. 203. In

4

2011, she was the Director of People Services for Cox for all of California and she reported to

5

Sharon Smith, Vice President of People Services for California. Terri Wilson Decl. ¶¶ 1, 4-5. In

6

2011, Wilson had the authority to hire and fire within the HR department and she had to approve

7

suspension and termination decisions for employees in other departments, altogether totaling

8

2,800 employees in California. Terri Wilson Dep. 503:13-19. Wilson was involved in

9

discussions with Boretti and Joe Freeman regarding Plaintiff taking intermittent FMLA leave.

10

Id. at 101:3-102:6, 270:1-22. She participated in the decision to suspend and terminate Plaintiff.

11

Terri Wilson Decl. ¶ 6.

12

Joe Freeman is the Executive Director, Assistant General Counsel for CCI, four levels

13

below the CEO of CCI. He provides employment related advice regarding all 18,000 employees

14

of CCI and its subsidiaries. In 2011, he provided such advice regarding 20,000 employees.

15

CCC-PAF Nos. 204-206. He discussed Plaintiff’s taking intermittent FMLA leave with Boretti

16

and Terri Wilson. Terri Wilson Dep. 101:3-102:6, 270:1-22. He was consulted for his legal

17

opinion when Allsopp, Pareja, Boretti, and Terri Wilson made the decision to terminate

18

Plaintiff. Id. at 368:19-370:2.

19
20

c. Evidence Supporting Punitive Damages
It is beyond dispute that Boretti, Wilson, and Garcia were not managing agents for §

21

3294(b) purposes, as they did not occupy positions from which they could determine corporate

22

policy. Thus, their conduct, even if malicious, cannot support an award of punitive damages

23

unless someone who was a managing agent within the company authorized or ratified their

24

actions. Alternatively, a managing agent could have acted with malice themselves.

25

Freeman cannot serve as managing agent because he was employed by CCI, not CCC or

26

CoxCom. In any event, there is no evidence in the record that he was a decision-maker with

27

regard to Plaintiff’s accommodation requests, as opposed to someone merely consulted for legal

28

advice. Thus, his conduct cannot support an award of punitive damages.
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1

Pareja was a higher-level employee who may have determined CoxCom’s or CCC’s

2

corporate policy. However, even if Pareja is a managing agent, Plaintiff has not provided

3

evidence that Pareja even knew about Plaintiff’s diabetes or about his requests for

4

accommodations at all, let alone that Pareja authorized or ratified any of the actions his

5

subordinates took with regard to Plaintiff’s requests. Thus, Pareja’s conduct cannot support an

6

award of punitive damages either.

7

Terri Wilson could be a managing agent because she was second-in-command of the HR

8

department for California, had the authority to hire and fire within her own department, and had

9

to sign off on all termination decisions of employees below the director level are sufficient to

10

find her a managing agent. Unlike Pareja, there is some evidence that she was aware of

11

Plaintiff’s history of seeking accommodations. (Boretti asked her to ask Freeman for advice

12

about whether Plaintiff was eligible to take intermittent FMLA leave. Terri Wilson Dep. 101:3-

13

102:20.) However, Plaintiff has not directed the Court to evidence showing whether Wilson

14

approved of requiring Plaintiff to take intermittent FMLA leave even though he potentially was

15

not eligible for it and whether she believed that that constituted a reasonable accommodation

16

under FEHA. Thus, her conduct cannot support an award of punitive damages.

17

With regard to Allsopp, even if she could be a managing agent, Plaintiff has not directed

18

the Court to evidence that Allsopp knew about Plaintiff’s request for a “medical” code or his

19

request for permission to stand up and walk around during his shift. Allsopp was aware of his

20

request for a private room to test his glucose, but there is no evidence that she authorized or

21

ratified Garcia’s or Boretti’s alleged failure to respond to Plaintiff’s request. Thus, her conduct

22

cannot support an award of punitive damages either.

23
24
25
26

Accordingly, the Court holds that Plaintiff cannot recover punitive damages on his failure
to reasonably accommodate and failure to engage in the interactive process claims.
H. Spoliation of Evidence
Plaintiff argues that Defendants should be sanctioned for destroying the tapes of the calls

27

that Plaintiff supposedly mishandled and for which he was suspended. Plaintiff seeks sanctions

28

ranging from terminating sanctions to various evidentiary sanctions.
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1. Legal Standard

1

“Spoliation of evidence is ‘the destruction or significant alteration of evidence, or the

2
3

failure to properly preserve property for another’s use as evidence in pending or reasonably

4

foreseeable litigation.’” Lifetouch Nat’l Sch. Studios, Inc. v. Moss-Williams, Case No. C10-

5

05297 RMW (HRL), 2013 U.S. Dist. LEXIS 148360, at *7 (N.D. Cal. Oct. 15, 2013) (quoting

6

Zubulake v. UBS Warburg LLD, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)). “A federal trial court

7

has the inherent discretionary power to make appropriate evidentiary rulings in response to the

8

destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.

9

1993).

10
11
12
13
14

Most courts use the three-part test set forth in Zubulake:
A party seeking sanctions for spoliation of evidence must prove the following
elements: (1) the party having control over the evidence had an obligation to
preserve it when it was destroyed or altered; (2) the destruction or loss was
accompanied by a culpable state of mind; and (3) the evidence that was destroyed
or altered was relevant to the claims or defenses of the party that sought the
discovery of the spoliated evidence[.]

15
16

Montoya v. Orange County Sheriff’s Dep’t, Case No. 11-cv-1922, 2013 U.S. Dist. LEXIS

17

180682, at *19-20 (C.D. Cal. Oct. 15, 2013) (internal quotation marks omitted). “Litigants have

18

an obligation to preserve evidence from the moment that litigation is reasonably anticipated.”

19

Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d 1132, 1136 (N.D. Cal. 2012) (“Apple I”).

20

“This is an objective standard, asking not whether the party in fact reasonably foresaw litigation,

21

but whether a reasonable party in the same factual circumstances would have reasonably

22

foreseen litigation.” Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011).

23

If a party is found to have spoliated evidence, the court then determines whether and

24

which sanctions are appropriate. Courts choose “the least onerous sanction corresponding to the

25

willfulness of the destructive act and the prejudice suffered by the victim.” Apple Inc. v.

26

Samsung Electronics Co., 888 F. Supp. 2d 976, 992 (N.D. Cal. 2012) (“Apple II”). “Ultimately,

27

the choice of appropriate spoliation sanctions must be determined on a case-by-case basis, and

28

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1

should be commensurate to the spoliating party’s motive or degree of fault in destroying the

2

evidence.” Id. at 992-93.
2. Analysis

3
4

Here, the relevance prong is easily satisfied. The tapes are key to understanding the

5

motivation behind the decision to suspend and to eventually terminate Plaintiff. Without ever

6

having heard the tapes, it is much more difficult for Plaintiff to refute Defendants’ descriptions

7

of the tapes.

8
9

However, because it is not clear when or in what circumstances the tapes were lost, it is
not clear whether Defendants had a duty to preserve or what Defendants’ state of mind was at

10

the time the tapes were lost. The tapes could have been destroyed as early as December 7, 2011,

11

the day that Plaintiff was suspended, or they could have been deleted 30 days or more later,

12

pursuant to Cox’s normal retention policies.

13

Defendants clearly had a duty to preserve evidence after December 3, 2012, when

14

Defendants received Plaintiff’s demand letter. Before that point, however, Defendants would

15

only have had a duty if there was a reasonable expectation of litigation. There is evidence that

16

Defendants recognized at the time they suspended him that Plaintiff’s experiences with Cox’s

17

FMLA administrator UNUM while he was on FMLA leave caring for his wife had once almost

18

led to legal troubles. But, the Court cannot say that a reasonable person in Defendants’ situation

19

would have expected Plaintiff to sue Defendants regarding his suspension. As Defendants point

20

out, after his troubles with UNUM, Plaintiff came back to work without bringing a lawsuit. Of

21

course, being suspended for cause is different from feeling harassed by an employer’s FMLA

22

administrator and it is not uncommon for an employee upset by a sudden adverse employment

23

action to sue their employers. However, ultimately, “[a] general concern over litigation does not

24

trigger a duty to preserve evidence. [A party has] no duty to preserve relevant documents or

25

evidence until a potential claim was identified or future litigation was probable.” Realnetworks,

26

Inc. v. DVD Copy Control Ass’n, Inc., 264 F.R.D. 517, 526 (N.D. Cal. 2009).

27
28

Plaintiff argues that Defendants had a separate legal duty to preserve the tapes under 29
C.F.R. § 1602.14, which states:
-34-

1
2
3
4
5

Any personnel or employment record made or kept by an employer (including but
not necessarily limited to requests for reasonable accommodation, application
forms submitted by applicants and other records having to do with hiring,
promotion, demotion, transfer, lay-off or termination, rates of pay or other terms
of compensation, and selection for training or apprenticeship) shall be preserved
by the employer for a period of one year from the date of the making of the record
or the personnel action involved, whichever occurs later.

6
7

Defendant argues that this regulation does not apply to the tapes because the tapes are not

8

“personnel or employment record[s]” within the meaning of the regulation. There is not much

9

case law on point. However, the Seventh Circuit has held that “[e]mployers are not required to

10

keep every single piece of scrap paper that various employees may create during the termination

11

process. It is sufficient that the employer retains only the actual employment record itself, not

12

the rough drafts or processes which may lead up to it.” Rummery v. Illinois Bell Tel. Co., 250

13

F.3d 553, 558-59 (7th Cir. 2001). That case involved an employer who asked its managers to fill

14

out ranking sheets and write evaluation notes to rank at-risk employees who would be

15

terminated. The Seventh Circuit affirmed a district court’s finding that § 1602.14 only required

16

the employer to preserve the summary sheet containing the final rankings, not each manager’s

17

rankings and evaluation notes. Id. Here, similar to the ranking sheets in Rummery, the tapes

18

were the raw material on which the employer’s personnel decision was based, but they were not

19

the actual employment records that the employer was required to keep.

20

Even if the tapes were squarely employment or personnel records under § 1602.14, the

21

Court still would not be inclined to find spoliation as Plaintiff has not demonstrated that

22

Defendants acted with a culpable state of mind. Defendants preserved and produced a number of

23

documents related to the calls at issue. Allsopp explained that, although she sometimes

24

downloaded calls off of the Qfiniti system onto her local computer, it was not her normal

25

practice to save all of the tapes that she reviewed for disciplinary issues. Allsopp Decl. ¶¶ 6-7

26

(Dkt. 58-1, Ex. 7). Plaintiff insinuates that Defendants must be hiding something because they

27

did not produce Allsopp as their Rule 30(b)(6) witness and because their 30(b)(6) witness did

28

not have clear answers about the tapes. However, Plaintiff does not explain why he did not
-35-

1

simply subpoena Allsopp as a percipient witness. Without stronger evidence that Allsopp or

2

other employees willfully caused the tapes to be deleted or that it was grossly negligent for them

3

to do so because they should have foreseen a lawsuit involving the tapes, the Court is not

4

inclined to find spoliation or to grant an adverse inference instruction or other sanctions at this

5

time.

6

IV.Disposition

7

For the reasons discussed above, the Court ORDERS as follows:

8

(1) Cox Enterprises, Inc.’s Motion for Summary Judgment is DENIED AS MOOT;

9

(2) CCI’s Motion for Summary Judgment is GRANTED and Plaintiff’s claims against CCI

10
11
12
13
14
15
16
17
18
19
20

are DISMISSED WITH PREJUDICE;
(3) CCC and CoxCom’s Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART as follows:
a. Plaintiff is not entitled to punitive or emotional distress damages on his FMLA
claims;
b. Plaintiff is not entitled to punitive damages on his failure to reasonably
accommodate and failure to engage in the interactive process FEHA claims;
c. Triable issues of material fact remain as to:
i. Whether Plaintiff’s taking intermittent FMLA leave in November 2011 was
a negative factor in Defendants’ decision to suspend him;
ii. Whether Plaintiff timely filed his September 14, 2012 DFEH complaint;

21

iii. Whether Defendants failed to provide reasonable accommodations; and

22

iv. Whether Defendants failed to engage in an interactive process with

23

Plaintiff; and

24

(4) Plaintiff’s Motion for Sanctions is DENIED.

25
26

The Court also hereby ORDERS as follows:

27
28

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1

(5) Plaintiff shall file oppositions to Defendants’ motions in limine on or before Tuesday,

2

April 7, 2015. Defendants shall also file oppositions to Plaintiff’s motions in limine by

3

that date;

4
5
6
7
8

(6) The parties shall lodge an amended proposed final pretrial order consistent with this order
on or before Thursday, April 9, 2015; and
(7) The parties are ordered to attend a mandatory settlement conference with Magistrate
Judge Douglas F. McCormick on Monday, April 13, 2015, at 11:00 a.m.
DATED:

April 6, 2015

9
10
11

__________________________________
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE

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20
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