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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIA LAFEVER
Plaintiff(s),

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v.

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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).

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No. C10-01782 BZ
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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Plaintiff Maria Lafever has sued her former employer,

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defendant Acosta, Inc.,1 for violating several disability

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discrimination provisions of the California Fair Employment

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and Housing Act (FEHA) and for wrongfully terminating her.

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Now before the Court is defendant’s motion for summary

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judgment.

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submitted by the parties and the arguments of counsel, IT IS

Docket No. 80.

Having considered the papers

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Defendant is a sales, marketing, and services company
for the food and consumer packaged goods industry.
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HEREBY ORDERED that defendant’s motion is DENIED for the

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reasons explained below.2

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I.

BACKGROUND3

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Plaintiff began working for defendant in August 2007 as a

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Business Manager Assistant.

This was an administrative

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position that required her to complete most of her duties from

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her desk.

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Lupus, did not experience any significant health problems

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until March 2008.

Plaintiff, who had previously been diagnosed with

Starting in March, plaintiff’s Lupus symptoms returned

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and she began to suffer from other medical conditions.

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attempted to work while dealing with her health issues, but in

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June she requested a leave of absence.

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plaintiff was experiencing exhaustion, shortness of breath,

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headaches, numbness in her hands, ulcerations in her

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fingertips, and weight and appetite loss.4

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She

By this time,

Even though plaintiff had worked for less than a year and

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was not eligible for a leave of absence under the Family

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Medical Leave Act (FMLA), defendant permitted her to take a

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leave until September 21.5

While the parties dispute some of

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The parties have consented to the Court’s
jurisdiction for all proceedings, including entry of final
judgment under 28 U.S.C. § 636(c).

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Unless noted otherwise, the facts discussed in this
Order are not disputed.
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Plaintiff was eventually diagnosed with the following
medical conditions: (1) secondary pulmonary hypertension; (2)
Mixed Connective Tissue Disorder; and (3) Raynaud’s Syndrome.
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Under defendant’s employment policies, plaintiff was
afforded one more week of leave in addition to the 12-week FMLA
leave.
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the details of their interactions during plaintiff’s leave and

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the severity of her medical conditions at that time, they

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agree that plaintiff eventually exhausted her leave and that

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defendant terminated her employment effective October 13.

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Around December, plaintiff informed defendant that she

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was feeling better and began asking about returning to work.

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In February 2009, plaintiff sent defendant her release to

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return to work form.

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interest in applying for any available positions.

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however, never interviewed or rehired plaintiff.

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She also continued to reiterate her
Defendant,

On March 25, 2010, plaintiff sued defendant in Alameda

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County Superior Court.

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under FEHA for failing to provide a reasonable accommodation,

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failing to engage in the interactive process, and disability

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discrimination.

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wrongfully terminated in violation of public policy.

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Defendant removed the action to this Court and now moves for

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summary judgment.

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II.

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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

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genuine dispute of material fact, and the moving party is

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entitled to judgment as a matter of law.

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The moving party bears both the initial burden of production

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as well as the ultimate burden of persuasion to demonstrate

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that no genuine dispute of material fact remains.

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& Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d

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1099, 1102 (9th Cir. 2000).

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initial burden, the nonmoving party is required “to go beyond

Fed. R. Civ. P. 56.

Nissan Fire

Once the moving party meets its

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the pleadings and by [its] own affidavits, or by the

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depositions, answers to interrogatories, and admissions on

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file, designate specific facts showing that there is a genuine

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issue for trial.”

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(1986) (internal quotations and citations omitted).

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summary judgment, courts are required to view the evidence in

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the light most favorable to the nonmoving party.

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

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587 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 324
On

Matsushita

If a reasonable jury could return a verdict in

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favor of the nonmoving party, summary judgment is

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inappropriate.

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248 (1986).

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III. ANALYSIS

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A.

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For plaintiff to prevail on her failure to accommodate

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

Reasonable Accommodation

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cause of action, she must establish that (1) she had a

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disability within the meaning of FEHA; (2) she was qualified

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to perform the essential functions of her position with or

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without accommodation; and (3) defendant failed to reasonably

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accommodate her disability.

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California-Orange County, Inc., 173 Cal.App.4th 986, 1009-1010

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(2009).

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dispute that plaintiff suffered from a disability or medical

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condition within the meaning of FEHA.

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argues that plaintiff could not perform the essential

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functions of her job.

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that it reasonably accommodated her disability by providing

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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

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employment policies.
Defendant’s arguments miss the mark.

Viewing the

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evidence in a light most favorable to the plaintiff, a

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reasonable jury could conclude that defendant is liable for

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strictly enforcing its maximum leave of absence policy rather

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than providing plaintiff with a reasonable accommodation such

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as an extension of her leave.

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accommodation includes “[j]ob restructuring, part-time or

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modified work schedules, reassignment to a vacant

Under FEHA, a reasonable

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position,...and other similar accommodations for individuals

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with disabilities.”

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v. Lucky Stores, Inc., the Court held that FEHA’s non-

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exhaustive list of reasonable accommodations includes finite

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leaves of absence, provided that the employee would likely be

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able to return to work at the end of the leave.

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Cal.App.4th 214, 226 (1999); see also Jensen v. Wells Fargo

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Bank, 85 Cal.App.4th 245, 263 (2000)(“Holding a job open for a

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disabled employee who needs time to recuperate or heal is in

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itself a form of reasonable accommodation and may be all that

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is required where it appears likely that the employee will be

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able to return to an existing position at some time in the

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foreseeable future”); Nunes v. Wal-Mart Stores, Inc., 164 F.3d

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1243, 1247 (9th Cir. 1999)(holding that an unpaid medical

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leave may be a reasonable accommodation under the ADA).

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while defendant is not required to wait indefinitely for an

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employee’s health problems to get better, Hanson, 74

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Cal.App.4th at 226-27, it cannot enforce a maximum leave

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policy without first considering whether a reasonable

Cal. Gov. Code § 12926(n)(2).

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In Hanson

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Thus,

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accommodation SS such as an additional short-term leave SS

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would be appropriate for certain employees after they exhaust

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their FMLA leave.

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recognize this:

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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.

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Gerwitz Deposition, Ex. 16 at 2.
Defendant’s misplaced reliance on its maximum leave

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policy also raises an issue for trial regarding plaintiff’s

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capacity to perform the essential functions of her job.

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analysis under this prong includes the consideration of

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whether plaintiff could perform her job with any reasonable

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accommodation.

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166 Cal.App.4th 952, 962 (2008)(explaining that the second

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element of an employee’s FEHA claim turns on whether plaintiff

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“could perform the essential functions of the relevant job

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with or without accommodation”)(emphasis added).

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plaintiff has submitted evidence that she would have been able

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to return to work if she was afforded a reasonable

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accommodation such as a short-term leave.

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plaintiff testified that before her leave was exhausted she

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notified her boss that she “was trying to come back to work,

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and that it would probably only be another month...”

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Deposition at 81.

The

See Nadaf-Rahrov v. Neiman Marcus Group, Inc.,

Here,

At her deposition,

Lafever

Defendant’s human resources manager,
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Deborah Karst, also had a conversation with plaintiff around

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the time her leave was about to expire.

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31-32.

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detail, her notes about the conversation contain the following

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entry: “2 more mons - Per doctor.”

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Ex. 9.

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impression that plaintiff needed an indefinite leave of

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absence.

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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

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going to return after September 21.

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102-03.

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that plaintiff would have been able to perform her job if

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defendant would have provided her with the accommodation of a

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reasonable extension of her leave.

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Lafever Deposition at

A reasonable jury could conclude from this evidence

Plaintiff also presented evidence that she may have been

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able to return to her job if defendant accommodated her

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request for a modified work schedule.

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that she asked Karst if it was possible for her to resume her

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job part-time, but Karst denied her request because

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plaintiff’s boss already had one part-time employee working

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for him.6

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genuine issue for trial about whether plaintiff could have

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performed the essential functions of her job with a modified

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work schedule accommodation and whether defendant is liable

Lafever Deposition at 78.

Plaintiff testified

This too raises a

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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.
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for failing to provide such an accommodation.

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Defendant points out that around the time that

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plaintiff’s leave was about to expire she was still suffering

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from many of the symptoms that originally required her to take

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the leave.

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she could not use her hands or change her son’s diaper,

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summing up that she “really couldn’t do anything.”7

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Defendant also relies heavily in its motion on a

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certification form from her doctor that Plaintiff sent

Lafever Deposition at 58-59.

She testified that

Id.

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defendant which estimated she would be disabled and unable to

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perform work of any kind until March 2009.8

Inciardi

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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.

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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.
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Declaration, Ex. C.

Whether this reliance is warranted is

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debatable since plaintiff contends, and defendant does not

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deny, that Toni Gerwitz, who terminated plaintiff, was unaware

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of the certification.

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termination as exceeding her “maximum leave entitlement.”

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at the hearing, defendant argued that this “unambiguous”

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certification form, which was dated October 15 by the doctor

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but had an unexplained fax header dated September 23,

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confirmed that plaintiff could not return to work and

The letter itself gives the reason for
Yet

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defendant had no other choice but to rely on its contents and

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terminate plaintiff’s employment.
The conflicting evidence only establishes that there is a

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genuine dispute about plaintiff’s ability to work that is

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proper for a jury to determine.

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Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

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(1986)(requiring courts to view the evidence on summary

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judgment in the light most favorable to the nonmoving party).9

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This genuine dispute is highlighted by Karst’s September 30

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e-mail asking Gerwitz to “process” a “term letter” for

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plaintiff as she had exceeded “her maximum leave entitlement”

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and “confirmed to me that she could not return [to work].”

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Gerwitz Deposition, Ex. 8.

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denied Karst’s version of their conversation and testified

See Matsushita Elec. Indus.

Plaintiff, on the other hand, has

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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).
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that she was able to return to work with a reasonable

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accommodation.

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evidence, it could find under California law that, rather than

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provide plaintiff with a reasonable accommodation, such as a

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short-term leave or a modified work schedule, defendant

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improperly terminated her instead.

If the jury accepts plaintiff’s version of the

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B.

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Employers under FEHA must engage in a “timely, good

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faith, interactive process with the employee or applicant to

Interactive Process

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determine effective reasonable accommodations...”

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Code § 12940(n).

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the interactive process, “no magic words are necessary, and

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the obligation [to accommodate] arises once the employer

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becomes aware of the need to consider an accommodation.”

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Scotch, 173 Cal.App.4th at 1014 (quoting Gelfo v. Lockheed

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Martin Corp., 140 Cal.App.4th 34, 62 (2006)).

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interact is continuous and an employer may be held liable for

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breakdowns in the process even when it initially took some

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steps to work with the employee.

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Cal.App.4th at 985-86.

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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

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engage in the interactive process because any potential

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accommodation would have been futile since plaintiff could not

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perform the essential functions of her job.

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earlier, there is a genuine issue for trial about whether

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plaintiff was a qualified individual under FEHA.

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defendant had a burden under the interactive process to

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consider reasonable accommodations and continually interact
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As explained

Furthermore,

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with the employee in good faith.

A reasonable jury could

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conclude that defendant, which was aware of plaintiff’s

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medical problems, should have worked with plaintiff around the

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time her leave was expiring to determine whether any

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reasonable accommodations would help her.

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Memorial Hospitals Ass’n., 239 F.3d 1128, 1137 (9th Cir.

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2001)(holding that after the employee had requested an

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accommodation that was rejected, the employer had an

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affirmative duty to explore alternative methods of

See Humphrey v.

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accommodation before terminating the employee).

In a similar

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manner, a jury could find that defendant, before deciding to

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terminate plaintiff, should have followed up with plaintiff or

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her doctor regarding her medical condition and the ambiguous

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content of her doctor’s certification form.

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166 Cal.App.4th at 989 (“In some circumstances, an employer

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may need to consult directly with the employee’s physician to

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determine the employee’s medical restrictions and prognosis

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for improvement or recovery”)(citations omitted).

See Nadaf-Rahrov,

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C.

Disability Discrimination

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Under FEHA, plaintiff can establish a prima facie case

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for disability discrimination by showing that (1) she suffers

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from a disability; (2) she is otherwise qualified to do the

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job; and (3) she was subjected to an adverse employment action

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because of her disability.

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Co., 150 Cal.App.4th 864, 886 (2007).

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that plaintiff’s claim fails as a matter of law because she

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was not able to perform her job.

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that there is a genuine dispute for trial regarding this

Faust v. Calif. Portland Cement

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Defendant again argues

The Court has already ruled

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issue.

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Plaintiff claims she was subject to two separate adverse

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employment actions; defendant illegally terminated her in

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October 2008 and defendant failed to reinstate or rehire her

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in early 2009 when she was ready to return to work.

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has introduced evidence that she was replaced by a non-

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disabled person, and that non-disabled people, who appear to

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be less qualified than she was, were given the positions in

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which she was interested.

Plaintiff

Defendant has not shown that it is

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entitled to summary judgment on the third element of

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plaintiff’s claim.

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court acknowledged that the plaintiff can establish the latter

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element for purposes of a wrongful discharge or adverse

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employment action claim by showing that he or she was subject

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to an adverse employment action and that he or she was

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replaced by a non-disabled person or was treated less

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favorably than non-disabled employees”)(citations and internal

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quotations omitted).

See Jensen, 85 Cal.App.4th at 254 (“The

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D.

Wrongful Termination Based on Public Policy

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Defendant moves for summary judgment on plaintiff’s

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wrongful termination cause of action solely on the grounds

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that the underlying FEHA causes of action, which constitute

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public policies, fail as a matter of law.

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does not grant defendant’s motion on plaintiff’s FEHA causes

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of action, defendant’s motion on this cause of action is also

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denied.

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IV.

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Because this Court

CONCLUSION
For the foregoing reasons, defendant’s motion for summary
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judgment is DENIED.

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Dated: May 20, 2011

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Bernard Zimmerman
United States Magistrate Judge

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Final Ruling.wpd