Chavarria v. Management & Training Corporation et al

Filing 45

ORDER Denying Defendant's 32 Motion for Summary Judgment. Signed by Judge Marilyn L. Huff on 6/5/2017. (ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESSE CHAVARRIA, Case No.: 3:16-cv-00617-H-RBB Plaintiff, 12 13 14 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. MANAGEMENT & TRAINING CORPORATION, a corporation, and DOES 1 through 100, inclusive, 15 16 [Doc. No. 32] Defendants. 17 18 On December 10, 2015, Plaintiff Jesse Chavarria (“Plaintiff”) filed an action in the 19 California Imperial County Superior Court against Defendant Management & Training 20 Corporation (“Defendant”). (Doc. No. 1-2 at 3.) Plaintiff alleges Defendant improperly 21 terminated him after he sustained a work-related injury in violation of various state laws, 22 including the California Fair Employment and Housing Act (“FEHA”) and the California 23 Family Rights Act (“CFRA”). (Id.) On March 10, 2016, Defendant removed the case to 24 the Federal Court for the Southern District of California and filed an answer. (Doc. Nos. 25 1, 2.) On April 24, 2017, Defendant filed a motion for summary judgment on Plaintiff’s 26 claims. (Doc. No. 32.) On April 26, 2017, the parties filed a joint motion to continue the 27 hearing. (Doc. No. 33.) The same day, the Court granted the motion and continued the 28 hearing to May 30, 2017. (Doc. No. 34.) On May 16, 2017, Plaintiff filed a response in 1 3:16-cv-00617-H-RBB 1 opposition to Defendant’s motion for summary judgment. (Doc. No. 36.) On May 22, 2 2017, the parties filed a second joint motion to continue the hearing. (Doc. No. 37.) The 3 Court granted the motion on May 23, 2017 and reset the hearing for June 5, 2017. (Doc. 4 No. 38.) The parties filed their reply briefs on May 26, 2017. (Doc. Nos. 39, 40.) The 5 Court held a hearing on the motion on June 5, 2017. Attorneys Geniene B. Stillwell and 6 Freda Tjoarman appeared on behalf of Plaintiff. Attorney Serafin H. Tagarao appeared 7 on behalf of Defendant. 8 9 BACKGROUND Defendant Management & Training Corporation (“MTC”) operates the Imperial 10 Regional Detention Center (the “Detention Center”), which houses U.S. Immigration & 11 Customs Enforcement detainees. (Doc. No. 36-3, Chavarria Decl. ¶ 5.) Plaintiff began 12 working at the Detention Center as a detention officer in the fall of 2014. (Id. ¶ 6.) 13 Prior to his employment at the Detention Center, Plaintiff worked as a detention 14 officer and lieutenant at another detention facility in El Centro (the “El Centro Facility”) 15 from 2009 to 2014. (Id. ¶ 2.) While at the El Centro Facility, Plaintiff suffered an injury 16 to his left arm and shoulder while restraining a detainee. (Id. ¶ 3.) 17 In early 2015, Plaintiff contends he still had pain in his left arm and shoulder and 18 was diagnosed with a muscle tear. (Id. ¶ 8.) Plaintiff subsequently took a leave of 19 absence until September 15, 2015. (Id.) During this time, Plaintiff provided MTC with a 20 medical report by Dr. McSweeney, which diagnosed Plaintiff with a partial tear of the left 21 pectoralis major. (Doc. No. 36-3, Chavarria Decl. Ex. B at 2.) As a result of the injury, 22 Dr. McSweeney opined that Plaintiff was “unable to return to his usual and customary 23 occupation” and was “precluded from repetitive forceful or heavy pushing or pulling with 24 the left upper extremity.” (Id. at 4.) 25 After reviewing Dr. McSweeney’s report, MTC terminated Plaintiff. On October 26 7, 2015, MTC’s Human Resources Manager Brandi Haley (“Haley”), called Plaintiff to 27 inform him of the decision. (Doc. No. 32-5, Haley Decl. ¶ 8.) Haley followed up the 28 phone conversation with a letter stating “Your request to extend your leave of absence 2 3:16-cv-00617-H-RBB 1 indefinitely has been denied. . . . Based on medical information received from your 2 physician you are no longer able to perform the essential functions of your position with 3 or without an accommodation. We are treating your failure to return to work as a 4 voluntary resignation, effective as of the date of this letter.” (Doc. No. 36-3 at 18.) 5 On October 13, 2015, Plaintiff replied to Haley’s letter, stating “Your letter 6 indicates that I requested an extension of indefinite leave of absence which is not 7 accurate. . . . Furthermore, your letter states that you received information from physician 8 (sic), stating that I’m no longer able to perform my essential job functions with or without 9 accommodations. Nowhere does it state that I am unable to perform my essential job 10 functions with or without accommodation.” (Id. at 21.) 11 In response, Haley sent a letter to Plaintiff on October 28, 2015, which stated: 12 “Upon receipt of your physician’s correspondence, we reviewed all vacancies at the 13 facility to determine whether you could be moved into an alternative position. There 14 were no positions for which you were qualified, that you could perform with or without 15 reasonable accommodation. As such, we considered you to have voluntary (sic) resigned 16 your position so that you would be eligible for rehire should you choose to apply for an 17 open position in the future and can provide a physician’s release authorizing your return 18 to work.” (Id. at 23.) 19 20 DISCUSSION I. SUMMARY JUDGMENT STANDARD 21 Summary judgment is proper when a moving party shows there is no genuine 22 dispute of material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. 23 P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is no genuine dispute if 24 “the record taken as a whole could not lead a rational trier of fact to find for the non- 25 moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 26 587 (1986). 27 28 The moving party bears the initial burden of producing evidence showing they are entitled to summary judgment. Celotex Corp., 477 U.S. at 330. The moving party can 3 3:16-cv-00617-H-RBB 1 satisfy this burden in two ways: (1) by presenting evidence that negates an essential 2 element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party 3 failed to establish an essential element of the nonmoving party’s case that the nonmoving 4 party bears the burden of proving at trial. Id. at 323. If the moving party satisfies their 5 initial burden, then the burden shifts to the nonmoving party to introduce evidence 6 showing there is a genuine dispute of material fact. Id. at 331. A fact is material when, 7 under the governing substantive law, it could affect the outcome of the case. Anderson v. 8 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To satisfy its burden, the non-moving 9 party “may not rest upon mere allegations or denials of his pleadings.” Id. Rather, the 10 nonmoving party “must present affirmative evidence . . . from which a jury might return a 11 verdict in his favor.” Id. Facts and inferences are to be viewed in the light most 12 favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). 13 II. 14 ANALYSIS A. DISABILITY DISCRIMINATION CLAIM 15 Defendant moves for summary judgment, arguing Plaintiff cannot establish a 16 prima facie case because his injury prevented him from performing the essential duties of 17 a detention officer. (Doc. No. 32-2 at 17.) In opposition, Plaintiff argues that triable 18 issues of material fact remain as to whether he was able to perform those duties. 19 To establish a prima facie case of disability discrimination under the FEHA, 20 Plaintiff must show “(1) he suffers from a disability; (2) he is otherwise qualified to do 21 his job; and (3) he was subjected to adverse employment action because of his disability.” 22 Faust v. California Portland Cement Co., 150 Cal.App.4th 864, 886 (2007). At summary 23 judgment, Defendant can satisfy its initial burden under Celotex by “present[ing] 24 admissible evidence either that one or more of the plaintiff’s prima facie elements is 25 lacking, or that the adverse employment action was based on legitimate, 26 nondiscriminatory factors.” Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297, 309 27 (2010). The burden then shifts to Plaintiff to show there are material issues of triable 28 fact. Id., see also Celotex, 477 U.S. at 330. 4 3:16-cv-00617-H-RBB 1 To establish he was “otherwise qualified to do his job,” Plaintiff must show he 2 could perform the essential duties of his job, with or without reasonable accommodations. 3 Cal. Gov’t Code § 12940 (a)(1); accord Nigro v. Sears, Roebuck and Co., 784 F.3d 495, 4 497 n.1 (9th Cir. 2015) (“Nigro established that with reasonable accommodations . . . he 5 was able to perform the essential functions of his position. He was, therefore ‘otherwise 6 qualified’ to do his job.”). The FEHA defines “essential functions” as “the fundamental 7 job duties of the employment position the individual with a disability holds . . . . [and] 8 does not include the marginal functions of the position.” Cal. Gov’t Code § 12926(f). A 9 duty can be essential because (1) “the reason the position exists is to perform that 10 function,” (2) there is a “limited number of employees available among whom the 11 performance of that job function can be distributed,” or (3) “[t]he function [is] highly 12 specialized, so that the incumbent in the position is hired for his or her expertise or ability 13 to perform the particular function.” Cal. Gov’t Code § 12926(f)(1)(A)-(C). 14 Defendant argues that Plaintiff cannot establish that he was qualified to do his job 15 because the evidence shows Plaintiff was unable to restrain and secure assaultive 16 detainees because of his disability, one of the essential functions listed in the Position 17 Description of a Detention Officer. (Doc. No. 36-4 at 203.) In support of this 18 conclusion, Defendant relies primarily on the medical report of Dr. McSweeney. (Doc. 19 No. 32-3 at 108-12.) In particular, Defendant notes that Dr. McSweeney stated Plaintiff 20 was “permanent and stationary,” “precluded from repetitive forceful or heavy pushing or 21 pulling with the left upper extremity,” and could not “return to his usual and customary 22 occupation.” (Id. at 110-11.) 23 Plaintiff argues in response that Dr. McSweeney’s report is inapposite because it 24 was rendered in connection with a separate workers’ compensation proceeding and, in 25 any event, does not support the conclusion that Plaintiff could not perform his essential 26 functions. The specific limitation mentioned by Dr. McSweeney was that Plaintiff could 27 not engage in “repetitive forceful or heavy pushing or pulling.” (Doc. No. 32-3 at 111.) 28 And Plaintiff argues there is no evidence in the record that restraining a detainee would 5 3:16-cv-00617-H-RBB 1 require repetitive forceful action or heavy pushing or pulling. (Doc. No. 36 at 21.) 2 Furthermore, Plaintiff contends that he is still physically capable of restraining a detainee, 3 as evidenced by the fact he successfully did so after he had sustained the injury to his 4 arm. (Doc. No. 36-3, Chavarria Decl. ¶14.) Finally, Plaintiff argues he is able to perform 5 the essential functions of his job as he successfully passed his use of force test in 6 September 2014, (Doc. No. 36-4 at 215-16), and satisfactorily performed his duties as a 7 detention officer for at least six months prior to being terminated despite the injury to his 8 arm, (Doc. No. 36-4 at 178). 9 Viewing these facts in the light most favorable to Plaintiff, material disputes of fact 10 remain as to whether Plaintiff could perform the essential functions of his job as a 11 detention officer. See Liberty Lobby, Inc., 477 U.S. at 265 (“Credibility determinations, 12 the weight of evidence, and the drawing of legitimate inferences from the facts are jury 13 functions, not those of a judge.”). Thus, the Court denies Defendant’s motion for 14 summary judgment as to Plaintiff’s disability discrimination claim. 15 Defendant separately argues that Plaintiff’s disability discrimination claims fails as 16 a matter of law under California Government Code § 12940 because employing Plaintiff 17 would threaten the health or safety of Plaintiff or other MTC employees. (Doc. No. 32-2 18 at 21.) In support of this argument, Defendant relies on Furtado v. State Personnel Bd., 19 212 Cal.App.4th 729 (2013), where a California court affirmed a lower court’s 20 conclusion that a correctional officer who was “unable to disarm, subdue, or apply 21 restraints to an inmate would be a hazard to others.” Id. at 748. This case, however, is 22 distinguishable, both procedurally and factually. First, in Furtado, the California Court of 23 Appeal was reviewing a trial court’s denial of a writ of mandate, not a motion for 24 summary judgment. The California State Personnel Board (“SPB”) had decided to 25 demote a correctional officer after determining he was unable to perform the essential 26 functions of his previous position. Id. at 733. Because the trial court was reviewing the 27 SPB decision, it only needed to find substantial evidence supporting their conclusion. Id. 28 at 743. In contrast, when reviewing a motion for summary judgment, the Court must 6 3:16-cv-00617-H-RBB 1 view the facts in the light most favorable to the non-moving party. Second, Furtado is 2 factually distinguishable because there the plaintiff repeatedly failed his fitness-for-duty 3 examination on account of his impairment and the SPB found he was unable to subdue an 4 inmate. Id. at 756. In contrast here, there remain material questions of fact as to what 5 functions Plaintiff can or cannot perform—including whether he can use force to restrain 6 a detainee. 7 B. FAILURE TO ACCOMMODATE CLAIM 8 Under the FEHA, it is an unlawful employment practice to fail to provide a 9 disabled employee with reasonable accommodations that enable the employee to perform 10 the essential functions of their job. Cal. Gov’t Code § 12940(m). To establish a prima 11 facie case of failure to accommodate under the FEHA, Plaintiff must show “(1) the 12 plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the 13 essential functions of the position, and (3) the employer failed to reasonably 14 accommodate the plaintiff’s disability.” Lui, 211 Cal.App.4th at 971. 15 Based on the present record, the Court agrees with Plaintiff that triable issues of 16 fact remain as to whether Plaintiff could perform the essential functions of his job. As a 17 result, the Court denies Defendant’s motion for summary judgment on the failure to 18 accommodate claim on the grounds that Plaintiff cannot satisfy that element. 19 Additionally, Defendant argues that summary judgment is proper because 20 Defendant attempted to reasonably accommodate Plaintiff’s disability. In opposition, 21 Plaintiff argues that reasonable accommodations were available but not offered. 22 Whether an employer’s actions were reasonable is inherently factual and “the 23 employer cannot prevail on summary judgment . . . unless it establishes through 24 undisputed facts that (1) reasonable accommodation was offered and refused; (2) there 25 simply was no vacant position within the employer’s organization for which the disabled 26 employee was qualified and which the disabled employee was capable of performing 27 with or without accommodation; or (3) the employer did everything in its power to find a 28 reasonable accommodation, but the informal interactive process broke down because the 7 3:16-cv-00617-H-RBB 1 employee failed to engage in discussions in good faith.” King v. United Parcel Service, 2 Inc., 152 Cal.App.4th 426, 442-43 (2007) (quoting Jensen v. Wells Fargo Bank, 85 3 Cal.App.4th 245, 256 (2000)). Defendant has not presented any evidence that it offered 4 Plaintiff any accommodations, nor that Plaintiff failed to engage in good faith 5 discussions. As such, the Court assesses whether Plaintiff was qualified to perform any 6 vacant position within the organization. 7 At the time Plaintiff was terminated, there were at least two vacant positions at the 8 El Centro Facility: Laundry Worker – Detainee Lead and Cook II – Detainee Lead. 9 (Doc. No. 32-2 at 24.) Defendant argues Plaintiff could not perform the essential 10 functions of these roles because they required constant lifting and moving objects and 11 also required supervising detainees. 12 Plaintiff argues in opposition that he was capable of performing the essential 13 functions of either open position. (Doc. No. 36 at 24.) Dr. McSweeney did not say that 14 Plaintiff could not lift objects, only that he could not engage in “repetitive forceful or 15 heavy pushing or pulling.” (Doc. No. 32-3 at 108-12.) And in his deposition, Warden 16 Rathman testified that the only pulling motion that was required of a cook was opening 17 the cooler doors but did not know how heavy the doors were or whether Plaintiff could 18 open them. (Doc. No. 36-4 at 184-85.) Furthermore, Plaintiff asserts in his declaration 19 that based on his observations of both the Laundry Worker and Cook position he would 20 be able to perform their essential duties. (Doc. No. 36-3, Chavarria Decl. ¶15.) 21 On this record, Defendant has not established that the undisputed facts show there 22 were no vacant positions Plaintiff could perform. King, 152 Cal.App.4th at 373-74. As 23 such, Defendant is not entitled to summary judgment of this claim. 24 25 C. INTERACTIVE PROCESS CLAIM California Government Code § 12940(n) makes it unlawful for “an employer . . . to 26 fail to engage in a timely, good faith, interactive process with the employee or applicant 27 to determine effective reasonable accommodations, if any, in response to a request for 28 reasonable accommodation by an employee or applicant.” Cal. Gov’t Code § 12940(n); 8 3:16-cv-00617-H-RBB 1 see also Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal.App.4th 952, 980 (2008). 2 “The interactive process is designed to bring [employer and employee] together to speak 3 freely and to determine whether a reasonable, mutually satisfactory accommodation is 4 possible.” Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 61 (2006) (quoting 5 Jensen, 85 Cal.App.4th at 261-62). An employer is liable under § 12940(n) when they 6 bear the responsibility for a breakdown in that interactive process. Nadaf-Rahron, 166 7 Cal.App.4th at 985. 8 Defendant moves for summary judgment on the interactive process claim, arguing 9 that Plaintiff never requested a reasonable accommodation and, in any event, Defendant 10 engaged in good faith dialog with Plaintiff. (Doc. No. 32-2 at 27-28.) Plaintiff opposes, 11 arguing questions of fact remain as to whether Defendant’s behavior was reasonable. 12 (Doc. No. 36 at 29.) 13 14 1. Plaintiff’s Request Generally, an employer’s duty to engage in the interactive process is not triggered 15 until the employee makes a request. See Cal. Gov’t Code § 12940(n) (“in response to a 16 request”); Robinson v. HD Supply, Inc., 2012 WL 5386293, *7 (E.D. Cal. Nov. 1, 2012); 17 Scotch v. Art Institute of California-Orange County, Inc., 173 Cal.App.4th 986, 1013 18 (2009) (“Where the disability, resulting limitations, and necessary reasonable 19 accommodations, are not open, obvious and apparent to the employer, . . . the initial 20 burden rests primarily upon the employee . . . to specifically identify the disability and 21 resulting limitations, and to suggest reasonable accommodations.”). However, “no magic 22 words are necessary, and the obligation arises once the employer becomes aware of the 23 need to consider an accommodation.” Gelfo, 140 Cal.App.4th at 62, n.22. 24 Defendant’s Human Resource Manager, Haley, recalled Plaintiff asking her to 25 “help him out.” (Doc. No. 36-4 at 110.) And Haley testified that she understood this to 26 mean that Plaintiff was asking for accommodations: 27 Q: So I guess going back to my original question, when Mr. Chavarria 28 presented his release to return to work with those permanent restrictions, did 9 3:16-cv-00617-H-RBB 1 you view him at that point as requesting reasonable accommodation of his 2 restrictions? 3 A: Yes. 4 (Id. at 64.) As such, a reasonable juror could conclude that Defendant was aware 5 of the need to consider accommodations for Plaintiff and the duty to engage in the 6 interactive process was triggered. 7 8 2. Good Faith Interactive Process During the interactive process, “[e]ach party must participate in good faith, 9 undertake reasonable efforts to communicate its concerns, and make available to the 10 other information which is available, or more accessible, to one party.” Gelfo, 140 11 Cal.App.4th at 62 n.22. Defendant claims it engaged in the good faith interactive process 12 by exploring all available vacant positions and remaining in contact with Plaintiff. (Doc. 13 No. 32-2at 29.) Plaintiff offers contrary facts that raise a triable issue of material fact 14 regarding whether Defendant complied with its obligation to participate in good faith in 15 the interactive process. 16 Plaintiff points out that Defendant did not comply with its own internal policies in 17 dealing with Plaintiff. Haley testified in her deposition that Defendant’s policy was to 18 have an in-person meeting between herself, Warden Rathman, and the person requesting 19 a leave or accommodation that was denied. (Doc. No. 36-4 at 66.) Haley, however, 20 admitted this meeting never happened in Plaintiff’s case. (Id.) Similarly, Defendant’s 21 internal policy titled “Persons with Disabilities” states that “upon the applicant or 22 employee’s request for reasonable accommodation, the human resources manager must 23 prepare the request for reasonable accommodation form.” (Doc. No. 36-4 at 201.) 24 Haley, however, admitted she did not fill out a Reasonable Accommodation Form for 25 Plaintiff. (Doc. No. 36-4 at 65.) And the parties dispute whether there were vacant 26 positions open that would accommodate Plaintiff’s disability. (Doc. No. 36-4 at 8.) 27 28 Finally, “[w]hether a specific accommodation was ‘reasonable’ and whether an employer engaged in a good faith interactive process with a disabled employee are 10 3:16-cv-00617-H-RBB 1 traditional questions of fact.” Ludovico v. Kaiser Permanente, 57 F.Supp.3d 1176, 1201 2 (N.D. Cal. 2014). This case is no different. Given the disputed issues of material fact, 3 the Court denies summary judgment on this claim. 4 D. PUBLIC POLICY CLAIM 5 Defendant argues Plaintiff’s wrongful termination in violation of public policy 6 claim fails for the same reason as his FEHA claim of disability discrimination. (Doc. No. 7 32-2 at 23, n.4.) But triable issues of material fact remain as to whether Defendant 8 violated the FEHA’s prohibition on disability discrimination. As a result, a triable issue 9 as to the one precludes summary judgment as to the other. See City of Moorpark v. 10 Superior Court, 18 Cal.4th 1143, 1161 (1998) (“We conclude that disability 11 discrimination can form the basis of a common law wrongful discharge claim.”); c.f., 12 Faust v. California Portland Cement Co., 150 Cal.App.4th 864, 886 (“Because Faust has 13 viable claims for violation of the CFRA, it necessarily follows that a triable issue exists 14 with respect to the fourth cause of action for wrongful termination in violation of public 15 policy.”). 16 17 E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM Defendant moves for summary judgment on Plaintiff’s claim of intentional 18 infliction of emotion distress (“IIED”), arguing that claim is barred by workers’ 19 compensation and Defendant neither engaged in outrageous conduct nor acted with intent 20 to cause extreme or severe distress. Plaintiff opposes, arguing that the claim is not barred 21 by workers’ compensation and there are triable issues of fact. 22 To establish a prima facie case of IIED, Plaintiff must show that Defendant 23 engaged in (1) extreme and outrageous conduct, (2) with the intent to cause, or reckless 24 disregard of the probability of causing, emotional distress, and (3) Defendant’s conduct 25 was the actual and proximate cause of Plaintiff’s severe or extreme emotional distress. 26 Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009). Conduct is extreme and outrageous when 27 it “exceed[s] all bounds of that usually tolerated in a civilized community.” Hughes, 46 28 Cal.4th at 1050. “[M]ere insults, indignities, threats, annoyances, petty oppressions, or 11 3:16-cv-00617-H-RBB 1 other trivialities” are not enough. Id. at 1051. However, [t]here is no bright line standard 2 for judging outrageous conduct, and a case-by-case appraisal of conduct is required. 3 Corkill v. Preferred Employers Group, LLC, 2011 WL 5975678, *14 (S.D. Cal. Nov. 28, 4 2011) (citing Cochran v. Cochran, 65 Cal.App.4th 488, 494 (1998)). 5 Plaintiff contends that material questions of fact remain as to whether Defendant’s 6 conduct was extreme and outrageous and whether Defendant had the requisite intent. 7 (E.g., Doc. No. 36-2 at 16-17.) Plaintiff has offered facts to show that Defendant failed 8 to follow its own affirmative action and disability accommodation policy. (Doc. No. 36- 9 4 at 66, 201.) Finally, Plaintiff has offered facts tending to show that Defendant failed to 10 reasonably engaged in the interactive process or explore reasonable accommodations. 11 (E.g., Doc. No. 36-3 at 18-23.) 12 Courts have found that “discriminatory acts can constitute outrageous conduct.” 13 Boehler, 2015 WL 12743688, *3. However, merely establishing facts that support a 14 violation under the FEHA is not enough to meet the extreme and outrageous standard. 15 Corkill, 2011 WL 5975678, *15 (“Therefore, a claim of discrimination under the FEHA 16 is not sufficient by itself to sustain a claim for intentional infliction of emotional 17 distress.”) Viewing the facts in the light most favorable to Plaintiff, material issues of 18 fact remain. 19 Similarly, material issues of triable fact remain as to Defendant’s intent. Plaintiff 20 must show that Defendant engaged in “conduct intended to inflict injury or engaged in 21 with the realization that injury will result.” Potter v. Firestone Tire & Rubber Co., 6 22 Cal.4th 965, 1001 (1993). Viewed in the light most favorable to Plaintiff, Plaintiff has 23 offered evidence that Defendant failed to follow its own policies when dismissing him 24 (e.g., Doc. No. 36-4 at 66), mischaracterized his request for accommodations as a request 25 for indefinite leave (id. at 109-11), and determined that reasonable accommodations were 26 unavailable without fully exploring the available options, (compare Doc. No. 36-4 at 171 27 with id. at 18), At this stage, these facts are sufficient to raise a triable issue of intent. 28 12 3:16-cv-00617-H-RBB 1 Defendant also argues that Plaintiff’s IIED claim fails because it is barred by 2 workers’ compensation. Workers’ compensation generally provides the exclusive 3 remedy for employees injured as a result of their employment. Livitsanos v. Superior 4 Court, 2 Cal.4th 744, 754 (1992); Yau v. Santa Margarita Ford, Inc., 229 Cal.App.4th 5 144, 161 (2014) (“Physical and emotional injuries sustained in the course of employment 6 are preempted by the workers’ compensation scheme”); Cal. Lab. Code § 3602 (“the 7 right to recover compensation is, except as specifically provided in this section and 8 Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her 9 dependents against the employer”). As an exception to this general rule, relief is not 10 barred where “the employer’s conduct . . . exceeds the risks inherent in the employment 11 relationship.” Livitsanos, 2 Cal.4th at 754. 12 In Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876 (2008), the California 13 Supreme Court revisited the exceptions to workers’ compensation and held that a claim 14 for IIED in a whistleblower retaliation case was barred because it did not exceed the risks 15 inherent in an employment relationship. Id. at 902-03 (quoting Shoemaker v. Myers, 52 16 Cal.3d 1, 23 (1990) (“Even if such conduct may be characterized as intentional, unfair or 17 outrageous, it is nevertheless covered by the workers’ compensation exclusivity 18 provisions.”); see also Yau, 229 Cal.App.4th at 161 (rejecting an IIED claim in a 19 whistleblower wrongful termination case). Post-Miklosy, no California appellate court 20 has addressed whether IIED claims arising from disability discrimination are barred. See 21 Negherbon v. Wells Fargo Bank, 2015 WL 6163570, *10 (N.D. Cal. Oct. 21, 2015) 22 (“The parties do not cite—and this Court is not aware of—any post-Miklosy California 23 appellate cases addressing the issue of whether an allegation of IIED arising from illegal 24 discrimination and harassment is barred by Miklosy.”) 25 The parties offer no federal court case law on whether IIED claims, based on 26 disability discrimination, are barred by the workers’ compensation exclusive remedy. As 27 to other forms of discrimination, federal district courts have found that some forms of 28 discrimination exceed the risks inherent in employment. E.g., Elowson v. Jea Senior 13 3:16-cv-00617-H-RBB 1 Living, 2015 WL 2455695, * 5 (E.D. Cal. May 22, 2015); Negherbon, 2015 WL 2 6163570, *10. However, these cases dealt with different forms of discrimination than 3 that alleged here. See Elowson, 2015 WL 2455695, *5 (“discrimination based on race, 4 religion, age, or gender is not a normal risk inherent in employment”); Rascon v. 5 Diversified Maintenance Systems, 2014 WL 1572554, *9 (E.D. Cal. April 17, 2014) 6 (“Gender or race based harassment and discrimination are actions that exceed the risks 7 inherent in the employment relationship.”); Webber v. Nike USA, Inc., 2012 WL 8 4845549, *5 (S.D. Cal. Oct. 9, 2012) (age discrimination); see also City of Moorpark v. 9 Superior Court, 18 Cal.4th 1143, 1155 (1998) (“Therefore, a section 132a violation, like 10 sexual and racial discrimination, falls outside the compensation bargain.”). Determining 11 whether Defendant’s conduct falls outside of risks inherent in the employment 12 relationship would benefit from additional factual development. As such, the Court 13 denies without prejudice Defendant’s motion for summary judgment on Plaintiff’s IIED 14 claim. 15 16 F. PUNITIVE DAMAGES In California, punitive damages are available under Civil Code § 3294 where a 17 defendant is “guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). Such 18 conduct must be proven by clear and convincing evidence. Punitive damages can be 19 awarded for violations of the FEHA and for intentional infliction of emotional distress. 20 Myers v. Trendwest Resorts, Inc., 148 Cal.App.4th 1403, 1435-36 (2007); McInteer v. 21 Ashley Distribution Services, Ltd., 40 F.Supp.3d 1269, 1295 (C.D. Cal. 2014). But not 22 every violation of the FEHA is sufficient and the Court expects further development of 23 the record on whether Plaintiff’s intentional infliction of emotional distress claim is 24 barred by the workers’ compensation exclusive remedy. E.g., Achal v. Gate Gourmet, 25 Inc., 114 F.Supp.3d 781, 798, 815 (N.D. Cal. 2015) (allowing FEHA claim but 26 dismissing punitive damages). 27 28 Viewing the facts in the light most favorable to Plaintiff, triable issues of fact remain on claims that theoretically could support a punitive damages prayer for relief. 14 3:16-cv-00617-H-RBB 1 See Cloud v. Casey, 76 Cal.App.4th 895, 912 (1999) (“The jury could properly conclude 2 that the corporations intentionally discriminated . . . then attempted to hide the illegal 3 reason for their decision with a false explanation, and that in this, they acted in a manner 4 that was base, contemptible or vile.”). As such, the Court denies Defendant’s motion for 5 summary judgment as to the punitive damages prayer for relief. 6 7 G. CFRA CLAIMS Plaintiff has voluntarily dismissed his claims based on the CFRA. (Doc. No. 36 at 8 7.) As a result, the Court denies Defendant’s motion for summary judgment on these 9 claims as moot. 10 11 CONCLUSION 12 For the foregoing reasons, the Court denies Defendant’s motion for summary 13 14 15 judgment on all remaining claims. IT IS SO ORDERED. DATED: June 5, 2016 Hon. Marilyn L. Huff United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 15 3:16-cv-00617-H-RBB

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