Lafever v. Acosta, Inc.

Filing 110

ORDER by Magistrate Judge Bernard Zimmerman denying 80 Motion for Summary Judgment (bzsec, COURT STAFF) (Filed on 5/20/2011)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 MARIA LAFEVER Plaintiff(s), 12 v. 13 14 15 16 17 ACOSTA, INC., a Delaware Closed Corporation, also d/b/a ACOSTA TRUEDEMAND, LLC; and also d/b/a ACOSTA MILITARY SALES, LLC; and DOES 1 through 20, inclusive, Defendant(s). 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C10-01782 BZ ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 19 20 Plaintiff Maria Lafever has sued her former employer, 21 defendant Acosta, Inc.,1 for violating several disability 22 discrimination provisions of the California Fair Employment 23 and Housing Act (FEHA) and for wrongfully terminating her. 24 Now before the Court is defendant’s motion for summary 25 judgment. 26 submitted by the parties and the arguments of counsel, IT IS Docket No. 80. Having considered the papers 27 1 28 Defendant is a sales, marketing, and services company for the food and consumer packaged goods industry. 1 1 HEREBY ORDERED that defendant’s motion is DENIED for the 2 reasons explained below.2 3 I. BACKGROUND3 4 Plaintiff began working for defendant in August 2007 as a 5 Business Manager Assistant. This was an administrative 6 position that required her to complete most of her duties from 7 her desk. 8 Lupus, did not experience any significant health problems 9 until March 2008. Plaintiff, who had previously been diagnosed with Starting in March, plaintiff’s Lupus symptoms returned 10 11 and she began to suffer from other medical conditions. 12 attempted to work while dealing with her health issues, but in 13 June she requested a leave of absence. 14 plaintiff was experiencing exhaustion, shortness of breath, 15 headaches, numbness in her hands, ulcerations in her 16 fingertips, and weight and appetite loss.4 17 She By this time, Even though plaintiff had worked for less than a year and 18 was not eligible for a leave of absence under the Family 19 Medical Leave Act (FMLA), defendant permitted her to take a 20 leave until September 21.5 While the parties dispute some of 21 2 22 The parties have consented to the Court’s jurisdiction for all proceedings, including entry of final judgment under 28 U.S.C. § 636(c). 23 3 24 25 26 27 28 Unless noted otherwise, the facts discussed in this Order are not disputed. 4 Plaintiff was eventually diagnosed with the following medical conditions: (1) secondary pulmonary hypertension; (2) Mixed Connective Tissue Disorder; and (3) Raynaud’s Syndrome. 5 Under defendant’s employment policies, plaintiff was afforded one more week of leave in addition to the 12-week FMLA leave. 2 1 the details of their interactions during plaintiff’s leave and 2 the severity of her medical conditions at that time, they 3 agree that plaintiff eventually exhausted her leave and that 4 defendant terminated her employment effective October 13. 5 Around December, plaintiff informed defendant that she 6 was feeling better and began asking about returning to work. 7 In February 2009, plaintiff sent defendant her release to 8 return to work form. 9 interest in applying for any available positions. 10 however, never interviewed or rehired plaintiff. 11 She also continued to reiterate her Defendant, On March 25, 2010, plaintiff sued defendant in Alameda 12 County Superior Court. 13 under FEHA for failing to provide a reasonable accommodation, 14 failing to engage in the interactive process, and disability 15 discrimination. 16 wrongfully terminated in violation of public policy. 17 Defendant removed the action to this Court and now moves for 18 summary judgment. 19 II. 20 She alleged that defendant was liable Plaintiff also alleged that she was LEGAL STANDARD FOR SUMMARY JUDGMENT Summary judgment is appropriate only when there is no 21 genuine dispute of material fact, and the moving party is 22 entitled to judgment as a matter of law. 23 The moving party bears both the initial burden of production 24 as well as the ultimate burden of persuasion to demonstrate 25 that no genuine dispute of material fact remains. 26 & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 27 1099, 1102 (9th Cir. 2000). 28 initial burden, the nonmoving party is required “to go beyond Fed. R. Civ. P. 56. Nissan Fire Once the moving party meets its 3 1 the pleadings and by [its] own affidavits, or by the 2 depositions, answers to interrogatories, and admissions on 3 file, designate specific facts showing that there is a genuine 4 issue for trial.” 5 (1986) (internal quotations and citations omitted). 6 summary judgment, courts are required to view the evidence in 7 the light most favorable to the nonmoving party. 8 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 9 587 (1986). Celotex Corp. v. Catrett, 477 U.S. 317, 324 On Matsushita If a reasonable jury could return a verdict in 10 favor of the nonmoving party, summary judgment is 11 inappropriate. 12 248 (1986). 13 III. ANALYSIS 14 A. 15 For plaintiff to prevail on her failure to accommodate Anderson v. Liberty Lobby, Inc., 477 U.S. 242, Reasonable Accommodation 16 cause of action, she must establish that (1) she had a 17 disability within the meaning of FEHA; (2) she was qualified 18 to perform the essential functions of her position with or 19 without accommodation; and (3) defendant failed to reasonably 20 accommodate her disability. 21 California-Orange County, Inc., 173 Cal.App.4th 986, 1009-1010 22 (2009). 23 dispute that plaintiff suffered from a disability or medical 24 condition within the meaning of FEHA. 25 argues that plaintiff could not perform the essential 26 functions of her job. 27 that it reasonably accommodated her disability by providing 28 her with the maximum amount of leave available under its Scotch v. Art Institute of For the purposes of this motion, defendant does not Instead, defendant Even if she could, defendant contends 4 1 2 employment policies. Defendant’s arguments miss the mark. Viewing the 3 evidence in a light most favorable to the plaintiff, a 4 reasonable jury could conclude that defendant is liable for 5 strictly enforcing its maximum leave of absence policy rather 6 than providing plaintiff with a reasonable accommodation such 7 as an extension of her leave. 8 accommodation includes “[j]ob restructuring, part-time or 9 modified work schedules, reassignment to a vacant Under FEHA, a reasonable 10 position,...and other similar accommodations for individuals 11 with disabilities.” 12 v. Lucky Stores, Inc., the Court held that FEHA’s non- 13 exhaustive list of reasonable accommodations includes finite 14 leaves of absence, provided that the employee would likely be 15 able to return to work at the end of the leave. 16 Cal.App.4th 214, 226 (1999); see also Jensen v. Wells Fargo 17 Bank, 85 Cal.App.4th 245, 263 (2000)(“Holding a job open for a 18 disabled employee who needs time to recuperate or heal is in 19 itself a form of reasonable accommodation and may be all that 20 is required where it appears likely that the employee will be 21 able to return to an existing position at some time in the 22 foreseeable future”); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 23 1243, 1247 (9th Cir. 1999)(holding that an unpaid medical 24 leave may be a reasonable accommodation under the ADA). 25 while defendant is not required to wait indefinitely for an 26 employee’s health problems to get better, Hanson, 74 27 Cal.App.4th at 226-27, it cannot enforce a maximum leave 28 policy without first considering whether a reasonable Cal. Gov. Code § 12926(n)(2). 5 In Hanson 74 Thus, 1 accommodation SS such as an additional short-term leave SS 2 would be appropriate for certain employees after they exhaust 3 their FMLA leave. 4 recognize this: 5 6 7 8 9 Defendant’s Medical Leave Policy seems to Associates who are not able to return to work once all eligible leave has been exhausted will be administratively terminated. If an Associate has a qualified disability under the Americans’ with Disabilities Act, a reasonable extension to the Maximum Leave of Absence Policy will be made. When an Associate who has been administratively terminated is released to return to work, every effort will be made to find him/her a position for which they are qualified. 10 11 12 Gerwitz Deposition, Ex. 16 at 2. Defendant’s misplaced reliance on its maximum leave 13 policy also raises an issue for trial regarding plaintiff’s 14 capacity to perform the essential functions of her job. 15 analysis under this prong includes the consideration of 16 whether plaintiff could perform her job with any reasonable 17 accommodation. 18 166 Cal.App.4th 952, 962 (2008)(explaining that the second 19 element of an employee’s FEHA claim turns on whether plaintiff 20 “could perform the essential functions of the relevant job 21 with or without accommodation”)(emphasis added). 22 plaintiff has submitted evidence that she would have been able 23 to return to work if she was afforded a reasonable 24 accommodation such as a short-term leave. 25 plaintiff testified that before her leave was exhausted she 26 notified her boss that she “was trying to come back to work, 27 and that it would probably only be another month...” 28 Deposition at 81. The See Nadaf-Rahrov v. Neiman Marcus Group, Inc., Here, At her deposition, Lafever Defendant’s human resources manager, 6 1 Deborah Karst, also had a conversation with plaintiff around 2 the time her leave was about to expire. 3 31-32. 4 detail, her notes about the conversation contain the following 5 entry: “2 more mons - Per doctor.” 6 Ex. 9. 7 impression that plaintiff needed an indefinite leave of 8 absence. 9 that she needed to extend her leave of absence if she was not Karst Deposition at While Karst does not remember this conversation in Karst Deposition at 31; Karst testified that she was never under the Id. According to plaintiff, Karst instructed her 10 going to return after September 21. 11 102-03. 12 that plaintiff would have been able to perform her job if 13 defendant would have provided her with the accommodation of a 14 reasonable extension of her leave. 15 Lafever Deposition at A reasonable jury could conclude from this evidence Plaintiff also presented evidence that she may have been 16 able to return to her job if defendant accommodated her 17 request for a modified work schedule. 18 that she asked Karst if it was possible for her to resume her 19 job part-time, but Karst denied her request because 20 plaintiff’s boss already had one part-time employee working 21 for him.6 22 genuine issue for trial about whether plaintiff could have 23 performed the essential functions of her job with a modified 24 work schedule accommodation and whether defendant is liable Lafever Deposition at 78. Plaintiff testified This too raises a 25 26 27 28 6 Plaintiff explained that her request for a part-time schedule only meant that she wanted to start work at 10:00 a.m. rather than at 8:00 a.m. Lafever Deposition at 79. Plaintiff admitted that she never conveyed these terms of the request to Karst. Id. at 78. 7 1 for failing to provide such an accommodation. 2 Defendant points out that around the time that 3 plaintiff’s leave was about to expire she was still suffering 4 from many of the symptoms that originally required her to take 5 the leave. 6 she could not use her hands or change her son’s diaper, 7 summing up that she “really couldn’t do anything.”7 8 Defendant also relies heavily in its motion on a 9 certification form from her doctor that Plaintiff sent Lafever Deposition at 58-59. She testified that Id. 10 defendant which estimated she would be disabled and unable to 11 perform work of any kind until March 2009.8 Inciardi 12 7 13 14 15 16 At another point of her deposition, plaintiff testified that she would have been capable of performing each of the essential functions of her job on September 20. Lafever Deposition at 85-91. Plaintiff was not clear whether she could perform these tasks with or without a part-time schedule accommodation, but this is a distinction without a difference since plaintiff’s functional capacity is evaluated under both the “with” or “without” accommodation standards. See NadafRahrov, 166 Cal.App.4th at 962. 17 8 18 19 20 21 22 23 24 25 26 27 28 Plaintiff explains that she only faxed this certification form to defendant after Karst denied her request to work part-time and instructed her to provide the form so that her leave of absence could be extended. Lafever Deposition at 102-03. This explanation helps show that contrary to defendant’s argument, plaintiff’s case is not analogous to Swonke v. Sprint, Inc. 327 F.Supp.2d 1128 (N.D. Cal. 2004). In Swonke, the Court rejected the employee’s summary judgment argument that he was able to perform the essential duties of his job since he had previously submitted 21 doctor notes, over the course of two years, claiming that he could not return to work. Id. at 1133-34. One of the reasons Swonke held that the doctor notes were controlling was because there was no evidence on the record to support the employee’s claim that he was capable of working during the contested time. Id. In this case, however, plaintiff has presented evidence that she could perform her job through her testimony that she needed a short extension of her leave and her specific request to work part-time. Plaintiff, who only submitted one note from her doctor, further explained that she only provided this note after her requested accommodation was denied and she was instructed to do so by defendant. 8 1 Declaration, Ex. C. Whether this reliance is warranted is 2 debatable since plaintiff contends, and defendant does not 3 deny, that Toni Gerwitz, who terminated plaintiff, was unaware 4 of the certification. 5 termination as exceeding her “maximum leave entitlement.” 6 at the hearing, defendant argued that this “unambiguous” 7 certification form, which was dated October 15 by the doctor 8 but had an unexplained fax header dated September 23, 9 confirmed that plaintiff could not return to work and The letter itself gives the reason for Yet 10 defendant had no other choice but to rely on its contents and 11 terminate plaintiff’s employment. The conflicting evidence only establishes that there is a 12 13 genuine dispute about plaintiff’s ability to work that is 14 proper for a jury to determine. 15 Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 16 (1986)(requiring courts to view the evidence on summary 17 judgment in the light most favorable to the nonmoving party).9 18 This genuine dispute is highlighted by Karst’s September 30 19 e-mail asking Gerwitz to “process” a “term letter” for 20 plaintiff as she had exceeded “her maximum leave entitlement” 21 and “confirmed to me that she could not return [to work].” 22 Gerwitz Deposition, Ex. 8. 23 denied Karst’s version of their conversation and testified See Matsushita Elec. Indus. Plaintiff, on the other hand, has 24 25 26 27 28 9 The same is true with respect to defendant’s position that plaintiff was unable to work because she was receiving state disability benefits when she was terminated. This is evidence that the jury may consider in assessing plaintiff’s medical condition, but it does not automatically bar plaintiff’s FEHA claim. See Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935, 963 (1997). 9 1 that she was able to return to work with a reasonable 2 accommodation. 3 evidence, it could find under California law that, rather than 4 provide plaintiff with a reasonable accommodation, such as a 5 short-term leave or a modified work schedule, defendant 6 improperly terminated her instead. If the jury accepts plaintiff’s version of the 7 B. 8 Employers under FEHA must engage in a “timely, good 9 faith, interactive process with the employee or applicant to Interactive Process 10 determine effective reasonable accommodations...” 11 Code § 12940(n). 12 the interactive process, “no magic words are necessary, and 13 the obligation [to accommodate] arises once the employer 14 becomes aware of the need to consider an accommodation.” 15 Scotch, 173 Cal.App.4th at 1014 (quoting Gelfo v. Lockheed 16 Martin Corp., 140 Cal.App.4th 34, 62 (2006)). 17 interact is continuous and an employer may be held liable for 18 breakdowns in the process even when it initially took some 19 steps to work with the employee. 20 Cal.App.4th at 985-86. 21 Cal. Gov. While FEHA requires the employee to initiate The duty to Nadaf-Rahrov, 166 Defendant argues that it cannot be liable for failing to 22 engage in the interactive process because any potential 23 accommodation would have been futile since plaintiff could not 24 perform the essential functions of her job. 25 earlier, there is a genuine issue for trial about whether 26 plaintiff was a qualified individual under FEHA. 27 defendant had a burden under the interactive process to 28 consider reasonable accommodations and continually interact 10 As explained Furthermore, 1 with the employee in good faith. A reasonable jury could 2 conclude that defendant, which was aware of plaintiff’s 3 medical problems, should have worked with plaintiff around the 4 time her leave was expiring to determine whether any 5 reasonable accommodations would help her. 6 Memorial Hospitals Ass’n., 239 F.3d 1128, 1137 (9th Cir. 7 2001)(holding that after the employee had requested an 8 accommodation that was rejected, the employer had an 9 affirmative duty to explore alternative methods of See Humphrey v. 10 accommodation before terminating the employee). In a similar 11 manner, a jury could find that defendant, before deciding to 12 terminate plaintiff, should have followed up with plaintiff or 13 her doctor regarding her medical condition and the ambiguous 14 content of her doctor’s certification form. 15 166 Cal.App.4th at 989 (“In some circumstances, an employer 16 may need to consult directly with the employee’s physician to 17 determine the employee’s medical restrictions and prognosis 18 for improvement or recovery”)(citations omitted). See Nadaf-Rahrov, 19 C. Disability Discrimination 20 Under FEHA, plaintiff can establish a prima facie case 21 for disability discrimination by showing that (1) she suffers 22 from a disability; (2) she is otherwise qualified to do the 23 job; and (3) she was subjected to an adverse employment action 24 because of her disability. 25 Co., 150 Cal.App.4th 864, 886 (2007). 26 that plaintiff’s claim fails as a matter of law because she 27 was not able to perform her job. 28 that there is a genuine dispute for trial regarding this Faust v. Calif. Portland Cement 11 Defendant again argues The Court has already ruled 1 issue. 2 Plaintiff claims she was subject to two separate adverse 3 employment actions; defendant illegally terminated her in 4 October 2008 and defendant failed to reinstate or rehire her 5 in early 2009 when she was ready to return to work. 6 has introduced evidence that she was replaced by a non- 7 disabled person, and that non-disabled people, who appear to 8 be less qualified than she was, were given the positions in 9 which she was interested. Plaintiff Defendant has not shown that it is 10 entitled to summary judgment on the third element of 11 plaintiff’s claim. 12 court acknowledged that the plaintiff can establish the latter 13 element for purposes of a wrongful discharge or adverse 14 employment action claim by showing that he or she was subject 15 to an adverse employment action and that he or she was 16 replaced by a non-disabled person or was treated less 17 favorably than non-disabled employees”)(citations and internal 18 quotations omitted). See Jensen, 85 Cal.App.4th at 254 (“The 19 D. Wrongful Termination Based on Public Policy 20 Defendant moves for summary judgment on plaintiff’s 21 wrongful termination cause of action solely on the grounds 22 that the underlying FEHA causes of action, which constitute 23 public policies, fail as a matter of law. 24 does not grant defendant’s motion on plaintiff’s FEHA causes 25 of action, defendant’s motion on this cause of action is also 26 denied. 27 IV. 28 Because this Court CONCLUSION For the foregoing reasons, defendant’s motion for summary 12 1 judgment is DENIED. 2 Dated: May 20, 2011 3 Bernard Zimmerman United States Magistrate Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 g:\bzall\-bzcases\Lafever v. Acosta\Order Denying Defendant’s Motion for Summary Judgment 13 Final Ruling.wpd

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