Ramirez v. Reeve-Woods Eye Center

Filing 28

ORDER signed by Judge John A. Mendez on 6/20/2014 ORDERING that defendant's 18 Motion for Summary Judgment is GRANTED. CASE CLOSED. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LUZ R. RAMIREZ,

12

No.

13-cv-00429 JAM-EFB

Plaintiff,

13

v.

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

14

REEVE-WOODS EYE CENTER,

15

Defendant.

16
Plaintiff Luz R. Ramirez (“Plaintiff”) sued her former

17
18

employer Defendant Reeve-Woods Eye Center’s (“Defendant”) for

19

disability discrimination.

20

summary judgment on all of Plaintiff’s claims (Doc. #18).

21

Plaintiff opposes Defendant’s motion (Doc. #20) and Defendant

22

replied (Doc. #23).

23

hearing, the Court ordered the parties to submit further briefing

24

on the issue of equitable tolling.

25

filed her supplemental brief (Doc. #25) and Defendant responded

26

on June 13, 2014 (Doc. #27).

27

the Court grants Defendant’s Motion for Summary Judgment.

28

///

On May 7, 2014, Defendant moved for

A hearing was held on June 4, 2014.

At the

On June 10, 2014, Plaintiff

For the reasons set forth below,

1

1

I.

2

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff originally filed this action on March 1, 2013,

3

against Defendant (Doc. #1).

4

Plaintiff alleges six causes of action: (1) termination in

5

violation of public policy, (2) disability discrimination in

6

violation of California’s Fair Employment and Housing Act

7

(“FEHA”); (3) failure to engage in the interactive process;

8

(4) failure to provide reasonable accommodation; (5) unlawful

9

retaliation under FEHA; and (6) disability discrimination under

10

Title I of the Americans with Disabilities Act of 1990 (“ADA”).

11

Plaintiff worked for Defendant Reeve-Woods, a full service

12

eye clinic, as a refracting ophthalmic technician from November

13

16, 2000, to November 25, 2011.

14

of Undisputed Facts (“DSUF”), Doc. #21, ¶ 1.

Plaintiff saw an

15

average of 35-40 patients per day.

At the time of

16

Plaintiff’s disability in November of 2011, there were three

17

technicians between the two offices and each had full patient

18

schedules.

19

Id.

In Plaintiff’s complaint,

Pl.’s Resp. to Def.’s Statement

Id. ¶ 3.

Id. ¶¶ 30-31.

Plaintiff has hypoglycemia.

Id. ¶ 5.

On November 15, 2011,

20

Plaintiff presented a written confirmation of disability from Dr.

21

Illa to Defendant.

22

about Plaintiff’s hypoglycemia, whether Dr. Illa’s note precluded

23

Plaintiff from all work, and whether Plaintiff requested a

24

reasonable accommodation.

25

Parties dispute when Defendant first learned

November 15, 2011, was Plaintiff’s last day of work.

Id.

26

¶ 13.

Defendant terminated Plaintiff by a letter dated November

27

25, 2011.

28

disability benefits, beginning in December 2011 or January 2012.

Id. ¶ 14.

Plaintiff has applied for and has received

2

1

The benefits were exhausted in December 2012.

2

applied for Social Security Disability Benefits.

3

Plaintiff applied for, but was denied, unemployment benefits.

4

Id. ¶ 26.

Plaintiff has
Id. ¶ 25.

5
6

II.

OPINION

7

A.

8

The Federal Rules of Civil Procedure provide that “a court

9

Legal Standard

shall grant summary judgment if the movant shows there is no

10

genuine issue of material fact and that the movant is entitled to

11

judgment as a matter of law.”

12

asserting that a fact cannot be disputed must support the

13

assertion by citing to particular parts in the record, or by

14

showing that the materials cited do not establish the presence of

15

a genuine dispute.

16

of summary judgment “is to isolate and dispose of factually

17

unsupported claims or defenses.”

18

U.S. 317, 323-24 (1986).

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

Fed. R. Civ. P. 56(c)(1)(A)-(B).

A party

The purpose

Celotex Corp. v. Catrett, 477

19

The moving party bears the initial responsibility of

20

informing the district court of the basis for its motion, and

21

identifying those portions of “the pleadings, depositions,

22

answers to interrogatories, and admissions on file, together with

23

the affidavits, if any,” which it believes demonstrate the

24

absence of a genuine issue of material fact.

Celotex Corp., 477

25

U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).

That burden may be

26

met by “‘showing’- that is, pointing out to the district court-

27

that there is an absence of evidence to support the non moving

28

party’s case.”

Fairbank v. Wunderman Cato Johnson, 212 F.3d 528,
3

1

531 (9th Cir. 2000) (quoting Celotex Corp., 477 U.S. at 325).

2

the moving party meets its burden with a properly supported

3

motion, the burden shifts to the opposing party.

4

opposition “may not rest upon the mere allegations or denials of

5

the adverse party’s pleading,” but must provide affidavits or

6

other sources of evidence that “set forth specific facts showing

7

that there is a genuine issue for trial.”

8

263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Fed. R. Civ. P.

9

56(e)).

Id.

If

The

Devereaux v. Abbey,

The adverse party must show that the fact in contention

10

is material and the issue is genuine.

11

Inc., 477 U.S. 242, 248 (1986).

12

might affect the outcome of the suit under governing law.

13

fact issue is “genuine” when the evidence is such that a

14

reasonable jury could return a verdict for the non-moving party.

15

Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th

16

Cir. 2002).

17

alone does not create a genuine issue of fact.

18

must view the facts and draw inferences in the manner most

19

favorable to the non-moving party.

20

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

21

Anderson v. Liberty Lobby,

A “material” fact is a fact that
Id.

A

However, uncorroborated and self-serving testimony
Id.

The Court

Matsushita Elec. Indus. Co.

The mere existence of a scintilla of evidence in support of

22

the non-moving party’s position is insufficient: “There must be

23

evidence on which the jury could reasonably find for [the non-

24

moving party].”

25

applies to either a defendant’s or plaintiff’s motion for summary

26

judgment the same standard as for a motion for directed verdict,

27

which is “whether the evidence presents a sufficient disagreement

28

to require submission to a jury or whether it is so one-sided

Anderson, 477 U.S. at 252.

4

This Court thus

1

that one party must prevail as a matter of law.”

2

B.

3

Defendant objects to the Declaration of

Id.

Evidentiary Objections
Ms. Rosie Ramirez

4

because it contradicts her deposition and the declaration is

5

conclusory.

6

below, the declaration is unnecessary for the determination of

7

this motion.

8

objections.

9

C.

10

However, for the reasons mentioned

Therefore, the Court need not address Defendant’s

Discussion
1.

11

Doc. #23-2.

Exhaustion under FEHA and ADA

Defendant moves to dismiss Plaintiff’s second through sixth

12

causes of action, in part, because Plaintiff failed to exhaust

13

her administrative remedies under FEHA and the ADA.

14

contends that a copy of the right-to-sue notice from the

15

Department of Fair Employment and Housing (“DFEH”) was reproduced

16

for Defendant and she has included a copy with her opposition.

17

See Ex. 2, attached to Decl. of Luz “Rosie” Ramirez, Doc. #22, at

18

1-2.

19

administrative claim after the applicable limitation periods.

20
21

Plaintiff

In its reply, Defendant argues that Plaintiff filed her

a.

FEHA

Exhaustion of administrative remedies is required before

22

initiating a private civil action under FEHA.

23

Cal.3d 65, 83 (1990) (holding that “exhaustion of the FEHA

24

administrative remedy is a precondition to bringing a civil suit

25

on a statutory cause of action.”) (emphasis in original).

26

California Government Code section 12960, “[n]o complaint may be

27

filed after the expiration of one year from the date upon which

28

the alleged unlawful practice or refusal to cooperate occurred,”
5

Rojo v. Kliger, 52

Under

1

barring exceptions related to delayed discovery, which are not

2

relevant in this case.

3

discriminatory acts that occurred more than one year prior to the

4

filing of an administrative complaint with the DFEH are time-

5

barred.

6

63 (2000).

7

Cal. Gov. Code § 12960(d).

Any

Morgan v. Regents of Univ. of Cal., 88 Cal.App.4th 52,

In this case, Plaintiff filed an administrative complaint

8

with the DFEH on March 1, 2013, and she received a right-to-sue

9

notice on March 1, 2013, because an immediate right-to-sue notice

10

was requested.

11

#22, at 1-2.

12

occurred on November 15, 2011.

13

was terminated on November 25, 2011, which would be the date of

14

the unlawful action.

15

Cal.4th 479, 492 (1996) (noting that the date of employee’s

16

actual termination, rather than date he was told he would be

17

terminated, triggered running of limitations period under FEHA).

18

Based on her termination date,

19

administrative complaint was November 25, 2012.

20

undisputed that Plaintiff submitted her charge to the DFEH after

21

the one-year limitations period had expired.

22

See Ex. 2, attached to Decl. of Luz Ramirez, Doc.
Defendant argues that the alleged unlawful practice
Reply at 4-5.

However, Plaintiff

See Romano v. Rockwell Internat., Inc., 14

Plaintiff’s last day to file her
Therefore, it is

During the June 4, 2014 hearing on this motion, Plaintiff

23

claimed that Defendant’s argument was raised in the reply and she

24

consequently did not have the opportunity to argue equitable

25

tolling.

26

claim should be equitably tolled under McDonald v. Antelope

27

Valley Community College District, 45 Cal.4th 88 (2008), because

28

the parties conducted reasonable and good faith negotiations

In her supplemental brief, Plaintiff argues that her

6

1

prior to filing her charge with the DFEH.

2

California Supreme Court held that when an employee voluntarily

3

pursues a remedy through an internal administrative grievance

4

procedure prior to filing a complaint under FEHA, the statute of

5

limitations on her FEHA claim is subject to equitable tolling.

6

Id. at 100-106

7

In McDonald, the

However, as Defendant argues, Plaintiff did not allege facts

8

in support of equitable estoppel in her complaint.

Because

9

Plaintiff did not raise it in her pleadings, the Court may not

10

consider this claim raised for the first time at summary

11

judgment.

12

F.3d 989, 992 (9th Cir. 2006) (stating that “federal courts have

13

repeatedly held that plaintiffs seeking to toll the statute of

14

limitations on various grounds must have included the allegation

15

in their pleadings; this rule applies even where the tolling

16

argument is raised in opposition to summary judgment”); see also

17

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th

18

Cir. 2006) (noting that plaintiff could not raise new factual

19

allegations at summary judgment because allegations not included

20

in the complaint failed to “give the defendant fair notice of

21

what the plaintiff’s claim [were] and the grounds upon which

22

[they] rest[ed],” as required by Rule 8(a)(2) of the Federal

23

Rules of Civil Procedure).

See Wasco Prods. Inc. v. Southwall Techs., Inc., 435

24

Moreover, McDonald applies “[w]hen an injured person has

25

several legal remedies and, reasonably and in good faith, pursues

26

one.”

27

internal grievance procedures would be an alternative legal

28

remedy.

McDonald, 45 Cal.4th at 100.

Id.

For example, administrative

In this case, this principle of equitable tolling
7

1

does not apply because Plaintiff has not established that she had

2

“several legal remedies.”

3

engaged in preliminary settlement negotiations, which does not

4

constitute a separate legal remedy.

5
6

Accordingly, Plaintiff’s FEHA claims—the second, third,
fourth, and fifth causes of action—are time barred.

7
8
9

At most, Plaintiff claims that she

b.

ADA

As with FEHA claims, exhaustion of administrative remedies
is required under the ADA.

Stiefel v. Bechtel Corp., 624 F.3d

10

1240, 1244 (9th Cir. 2010)(holding that ADA employment actions

11

incorporate Title VII’s exhaustion requirements).

12

U.S.C. § 2000e–5(e), a complainant must file a charge with the

13

EEOC within 180 days of the last act of alleged discrimination,

14

unless the complainant initially institutes proceedings with a

15

state or local agency, in which case, the EEOC charge must be

16

filed within 300 days.

17

Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000).

18

Further, when a plaintiff is entitled to an EEOC right-to-sue

19

letter, but only obtains a right-to-sue notice from the DFEH, the

20

plaintiff may proceed with her ADA claim as if the EEOC letter

21

were obtained.

22

Under 42

42 U.S.C. § 2000e–5(e); see also Santa

Stiefel, 624 F.3d 1240, 1244–45.

Plaintiff brought her discrimination claim with the DFEH, a

23

state agency, and therefore, the 300–day time limit applies in

24

this case.

25

September 20, 2012.

26

complaint on March 1, 2013, Plaintiff did not timely file under

27

the ADA and was not entitled to an EEOC right-to-sue letter.

28

Therefore, Plaintiff’s sixth cause of action for disability

Three hundred days from November 25, 2011, is
Because Plaintiff filed her administrative

8

1

discrimination under Title I of the ADA is time barred.

2

Furthermore, for the reasons mentioned above, equitable tolling

3

does not apply.

4

Accordingly, the Court grants Defendant’s Motion for Summary

5

Judgment as to Plaintiff’s second, third, fourth, fifth, and

6

sixth causes of action.

7

Defendant’s remaining arguments under Plaintiff’s FEHA and ADA

8

claims.

9
10

2.

In addition, the Court need not address

First Cause of Action

The only remaining cause of action is Plaintiff’s first

11

cause of action for termination in violation of public policy.

12

Although Defendant moved for summary judgment on Plaintiff’s

13

first cause of action, in her opposition, Plaintiff does not

14

address the merits of this claim.

15

Plaintiff’s first cause of action fails because Plaintiff has not

16

identified a particular public policy and only makes vague

17

references to FEHA and the ADA.

18

claim fails because it is dependent on Plaintiff’s statutory

19

claims.

20

Defendant argues that

Defendant also argues that this

Under California common law, although “an at-will employee

21

may be terminated for no reason, or for an arbitrary or

22

irrational reason, there can be no right to terminate for an

23

unlawful reason or a purpose that contravenes fundamental public

24

policy.”

25

Technologies, Inc., 642 F.3d 728, 748-49 (9th Cir. 2011)(quoting

26

Silo v. CHW Med. Found., 27 Cal.4th 1097 (2002)).

27

for this tort are (1) the existence of a public policy and (2) a

28

nexus between the public policy and an employee’s termination.

Dep’t of Fair Employment & Hous. v. Lucent

9

The elements

1

Id. (citing Turner v. Anheuser–Busch, Inc., 7 Cal.4th 1238

2

(1994)).

3

The specific policy at issue in this case is unclear.

4

Compl. ¶¶ 7-9.

Although FEHA and the ADA are mentioned in the

5

complaint, Plaintiff generally alleges that “Plaintiff was

6

terminated . . . in violation of public policy and in violation

7

of Defendants’ own policies and procedures” and “said public

8

policy is tethered to numerous statutes.”

9

Plaintiff also failed to clarify which policies are at issue in

Compl. ¶¶ 8, 9.

10

her opposition.

11

based on her statutory claims, it fails for the reasons mentioned

12

above.

13

6839370, at *8 (C.D. Cal. Dec. 23, 2013) (“Where courts have

14

granted summary judgment as to the plaintiff’s FEHA claims, the

15

courts have concluded that summary judgment is appropriate on the

16

plaintiff's public policy claim.”) (citations omitted).

17
18

Further, to the extent that Plaintiff’s claim is

See Stewart v. Boeing Co., CV 12-05621-RSWL-AGR, 2013 WL

Accordingly, the Court grants Defendant’s Motion for Summary
Judgment as to Plaintiff’s first cause of action.

19
20
21
22
23
24

III.

ORDER

For the reasons set forth above, the Court grants
Defendant’s Motion for Summary Judgment in its entirety.
IT IS SO ORDERED.
Dated: June 20, 2014

25
26
27
28
10